Wagner v. Social Security

Filing 24

OPINION entered by Magistrate Judge Tom Schanzle-Haskins on 6/24/2016. Plaintiff's Motion for Summary Judgment, d/e 18 is ALLOWED, and Defendant's Motion for Summary Affirmance, d/e 21 is DENIED. This matter is REVERSED AND REMANDED pursuant to sentence four of 42 U.S.C. § 405(g). This case is CLOSED. (MAS, ilcd)

E-FILED

Friday, 24 June, 2016 02:05:30 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS, SPRINGFIELD DIVISION
TRAVIS L. WAGNER,

)
)
Plaintiff,
)
)
v.
)
)
CAROLYN COLVIN, Acting
)
Commissioner of Social Security, )
)
Defendant.
)

No. 15-cv-3101

OPINION
TOM SCHANZLE-HASKINS, U.S. MAGISTRATE JUDGE:
Plaintiff Travis L. Wagner appeals from the denial of his application
for Social Security Disability Insurance Benefits (Disability Benefits) under
Title II of the Social Security Act. 42 U.S.C. §§ 416(i) and 423. This appeal
is brought pursuant to 42 U.S.C. § 405(g). Wagner has filed a Motion for
Summary Judgment (d/e 18), and Defendant Commissioner of Social
Security has filed a Motion for Summary Affirmance (d/e 21). The parties
consented, pursuant to 28 U.S.C. § 636(c), to proceed before this Court.
Consent to the Exercise of Jurisdiction by a United States Magistrate and
Reference Order entered November 4, 2015 (d/e 14). For the reasons set
forth below, the Decision of the Commissioner is reversed and remanded
under 42 U.S.C. § 405(g) sentence four.
Page 1 of 39

STATEMENT OF FACTS
Wagner was born on August 1, 1970. R. 44. He completed high
school. R. 49, 270. He previously worked as a hand packager and a
manager/night bartender at a restaurant. R. 24, 244, 270. On October 31,
2012, Wagner applied for Disability Benefits. Wagner alleged that his
disability began on February 4, 2012. R. 42, 202-14, 451. Wagner suffers
from degenerative disc disease of the cervical spine with radiculopathy in
the upper extremities, bilateral degenerative disease of the hips, right
shoulder tendinopathy, history of lumbar spine surgery, gout, and obesity.
R. 14.
On December 8, 2009, Wagner filed a prior application for Disability
Benefits. At that time, Wagner alleged he was disabled since December 2,
2009, due to alcoholism, gout, cellulitis, back injury, immobility of the left
leg, depression, mental anxiety, and burns on the right foot. R. 244, 447;
see generally R. 99-100, 134-35, 240-64, 418-47. On February 11, 2010,
Wagner completed a form entitled “Physical Impairments Questionnaire” for
the Illinois Disability Determination Services. Wagner stated that he could
sit for two hours without having to get up to stand or walk. R. 264. On May
12, 2010, Wagner’s December 8, 2009 application for Disability benefits
was denied. R. 99-100.
Page 2 of 39

On February 10, 2012, Wagner saw Advanced Practice Nurse Diana
Oakley at the Sarah Bush Lincoln Health Center in Mattoon, Illinois, with
right shoulder pain. Wagner reported that he hurt his shoulder on February
4, 2012 at work. He was packing paper cups into boxes. The paper cups
were packaged in plastic sleeves. Each sleeve of cups weighed two to two
and one-half pounds. Wagner reported feeling an “immediate sharp pain”
when he grabbed four sleeves of cups to pack them into a box. Wagner
reported that the pain had persisted ever since. Rest and ice did not help.
Ibuprofen helped, but caused an upset stomach. Vicodin helped with the
pain.1 Wagner reported pain in his entire right shoulder radiating into his
right arm. He also reported burning pain in his right fifth finger and
numbness in all of his right fingers. Wagner reported that he was in
“agony” and could not sleep. R. 451.
On examination, Oakley observed that Wagner could “fully flex and
extend, abduct and adduct the digits of the right hand.” Wagner could fully
flex and extend both wrists. Wagner had difficulty flexing his right elbow
and limited range of motion in his right shoulder. Wagner had normal
range of motion in his cervical spine. R. 451-52. Oakley ordered an x-ray
of Wagner’s right shoulder. The x-ray showed moderate degenerative

1

Wagner took “2 year old leftover Vicodin.” R. 451. The source of the Vicodin is not otherwise identified.

Page 3 of 39

changes of the acromioclavicular joint without bony abnormality. R. 504,
522. Oakley opined that lifting ten pounds of cups did not cause his
symptoms. Oakley continued the Vicodin and referred Wagner to his
primary care physician for follow-up. Oakley took Wagner off work until he
was evaluated by his primary care physician. R. 452.
On February 13, 2012, Wagner saw Physician’s Assistant Gary
Hayden at the offices of Dr. David Oligschlaeger, D.O., for right shoulder
pain. Wagner described the pain “as moderate in severity, constant, dull,
throbbing, and burning.” Wagner also reported numbness in the right hand
and fingers. Wagner reported that NSAIDs relieved the pain. At the time of
the examination, Wagner was 5 feet, 11 ¾ inches tall and weighed 230
pounds. On examination, Wagner had pain on palpitation of the superior
trapezius and cervical right paraspinal muscles; limited range of motion in
the right shoulder; and neurovascular sensory deficit in the C5 and T1
dermatomal distribution. Hayden assessed shoulder pain and cervical
radiculopathy. R. 474-75. Hayden ordered an x-ray of Wagner’s cervical
spine. Hayden gave Wagner a note stating that Wagner “is off of work until
further notice. Under our care.” R. 553.
On February 17, 2012, Wagner underwent an x-ray of his cervical
spine. The x-ray showed abnormal appearance of the C5 vertebral body,
Page 4 of 39

marked osteophytic impingement upon the left intervertebral foramen at
C5-6 level, mild levoscoliosis of the upper cervical spine. The radiologist
recommended an MRI. R. 501.
On March 5, 2012, Wagner underwent an MRI of the cervical spine.
The MRI showed disk bulging and herniation impinging on the cord at the
midline C5-6; spondylosis and small protruded herniation on the left C5-6
impinging on the thecal sac and the nerve root sleeve; mild posterior disk
bulging at C2-3; and degenerative changes that were “mild in most
locations and moderate to marked particularly at the C5-6.” On March 7,
2012, Hayden recommended a neurosurgical consult “with all the MRI
changes and arm pain and weakness.” R. 500.
On April 4, 2012, Wagner received a note on stationary which had the
letterhead for the offices of Dr. Oligschlaeger and Physician’s Assistant
Hayden. The note stated, “To Whom It May Concern: Travis has been
seen in our offices for a workers comp injury on February 13, 2012. He is
unable to work at this time.” The note was not signed, but was stamped
with the printed names and office address of Dr. Oligschlaeger and
Hayden. R. 459.
On June 7, 2012, Wagner saw Dr. Donald DeGrange, M.D., at the
request of the worker’s compensation insurance carrier of Wagner’s former
Page 5 of 39

employer. Wagner reported constant pain in his right arm and his neck.
Wagner reported pain, numbness, and burning on the right side of his neck
and throughout his right shoulder, arm, hand, and fingers. He reported that
movement made the pain worse, and nothing made the pain better.
R. 463. Wagner reported that his neck pain was “frequently mild and
occasionally moderate to severe with activities.” Wagner reported that the
pain in his hand was “most intense in the thumb and index finger.” R. 465.
On examination, Dr. DeGrange found that Wagner had limited range
of motion in his cervical spine, mild weakness to flexion and extension in
the elbow and wrist, and mild decrease in sensation over the first dorsal
webspace of the right hand. Dr. DeGrange reviewed the March 5, 2012
MRI and noted significant congenital spinal stenosis, mild degenerative
changes at C2-3, C3-4, and C4-5, and more significant degenerative
changes at C5-6 and C6-7. Dr. DeGrange concluded that these findings
indicated “clinically significant spinal stenosis, as well as lateral recess and
foraminal compromise bilaterally.” R. 466. Dr. DeGrange opined that
these changes made Wagner “susceptible to injury with the most minor
provocation.” R. 467. Dr. DeGrange stated, “It is my opinion that the
incident in question has precipitated his current medical condition that an
otherwise normal spinal canal would not have caused this degree of
Page 6 of 39

subjective complaints and functional disability.” R. 466. Dr. DeGrange
opined, however, that Wagner could perform light duty work in his current
condition if such work were available. R. 467.
On August 2, 2012, Wagner saw neurosurgeon Dr. Oliver Dold, M.D.
complaining of neck and right arm pain. Wagner reported severe pain
radiating from his neck down his right shoulder and arm. He reported
numbness and tingling in his right fingers. Wagner also reported some
weakness. He reported that he could not lift a gallon of milk. Wagner rated
his pain as 10 on a scale of 1 to 10.
On examination, Wagner’s neck motion was restricted, and he had
tenderness at the base of the neck and along the right trapezius muscle
border. Manipulation of the right shoulder was painful. Dr. Dold found no
wasting or weakness in the intrinsic hand muscles. Wagner had decreased
pinprick sensation in the right arm. Wagner’s gait was normal, and he had
good range of motion in his lumbar spine. Dr. Dold assessed cervical
radiculopathy and mechanical problems with the right shoulder. Dr. Dold
recommended an MRI of the right shoulder and possibly EMG and nerve
conduction studies. Wagner reported that he was taking hydrocodone-

Page 7 of 39

acetaminophen and ibuprofen for pain. Dr. Dold prescribed Norco for pain.
R. 481-82.2
On August 6, 2012, Wagner underwent an MRI of his right shoulder.
The MRI showed hypertrophic AC joint degenerative changes with
impingement. The radiologist assessed rotator cuff tendinopathy without
evidence of a tear, and biceps tendon subluxation without dislocation.
R. 498.
On December 20, 2012, Wagner completed a Function Report-Adult.
R. 287-94. Wagner reported that he lived in a house with his parents.
Wagner reported that he was in constant pain in his neck. He reported
limited movement in his right arm and left leg. He reported that he could
not lift more than ten pounds. R. 287. Wagner reported that he did not do
anything during a typical day because of the pain. R. 288. Wagner
reported that he watched television during the day. R. 291. He had
difficulty getting dressed, showering, combing his hair, and shaving. He did
not cook, do housework, or yard work. R. 289. Once a month he shopped
for about thirty minutes with his mother. He reported that he could walk fifty
yards before he needed to stop and rest for ten minutes. R. 292. Wagner

2

Norco is a pain reliever consisting of hydrocodone and acetaminophen. See R. 605. Dr. Dold
apparently continued Wagner’s existing pain medication.

Page 8 of 39

concluded, “I’m in constant pain—2 doctors said I needed surgery, but I
cannot afford it. Doctors have said my condition will only worsen.” R. 294.
On February 25, 2013, Wagner saw state agency physician Dr. Vittal
Chapa, M.D., for a consultative examination. R. 527-33. Wagner reported
pain in both shoulders and in his neck. He also reported a sciatic nerve
problem in his left leg. Wagner reported his pain as a 10, with 10 as the
maximum pain. Wagner reported that the pain was constant. Wagner
reported that sometimes his right arm swelled, and sometimes his neck
froze in one position. He reported that he saw a neurosurgeon, but could
not afford to see him again. Wagner reported that he had tingling in his
fingertips, and he sometimes could not put on his shoes and socks.
R. 527.
On examination, Wagner was 5 feet 9½ inches tall and weighed 253
pounds. Wagner was in no acute distress. Wagner’s gait was normal and
he could ambulate without assistive devices. Wagner’s hand grip strength
was 5/5 bilaterally. Wagner had no motor weakness or muscle atrophy.
Wagner showed no evidence of joint redness, heat, swelling or thickening.
Wagner could perform both fine and gross manipulations with both hands.
Wagner had limited range of motion in both the cervical and lumbar regions
of his spine. Dr. Chapa stated that Wagner had full range of motion in all
Page 9 of 39

other joints, although Dr. Chapa did not fully test Wagner’s range of motion
in his hips and knees due to pain. R. 531, 533. Straight leg testing was
negative. Wagner’s sensory examination was within normal limits.
Dr. Chapa found no evidence of cervical radiculopathy. Wagner had mild
difficulty getting on and off the examination table. Wagner also had mild
difficulty tandem walking, walking on toes, and walking on heels. Wagner
was unable to squat and arise from the squatting position. R. 533.
On February 12, 2013, state agency physician Dr. C.A. Gotway,
M.D., prepared a Residual Functional Capacity Assessment. Dr. Gotway
opined that Wagner could occasionally lift twenty pounds and frequently lift
ten pounds; could stand and/or walk six hours in an eight-hour day; could
sit for six hours in an eight-hour day; and could occasionally climb ramps,
stairs, ladders, scaffolding, and ropes; could occasionally stoop, crouch,
and crawl. Dr. Gotway opined that Wagner was limited in reaching
overhead. Dr. Gotway opined that Wagner had no other relevant functional
limitations for work activities. R. 105-06.
On March 18, 2013, Wagner saw Dr. Oligschlaeger with complaints
of back and neck pain. R. 549-50. Wagner reported that he was hurt on
the job and needed surgery but his employer’s worker’s compensation
insurer has not approved it yet. On examination, Wagner’s neck was
Page 10 of 39

supple with full range of motion. R. 550. Dr. Oligschlaeger assessed neck
and back pain. Dr. Oligschlaeger prescribed Lyrica and Hydrocodone/
Acetaminophen for the pain. R. 550, 554.3
On April 4, 2013, Wagner saw neurologist Dr. Douglas Dove, M.D.
Wagner reported low back pain. Wagner reported pain and weakness in
both legs. Dr. Dove reviewed Wagner’s medical history and test results.
On examination, Dr. Dove found Wagner’s neck was supple with full range
of motion; his pinprick sensation and other sensory reactions were normal;
he had normal muscle strength, tone, gait, and stance; he could tandem
walk, heel walk, and toe walk; and the rest of his motor examination was
normal. R. 608. Dr. Dove assessed cervical pain with pain radiating into
the left upper limb with a left C6 and C7 radiculopathy, right shoulder
disease with rotator cuff tendinopathy, and left hip pain due to gout.
R. 604. Dr. Dove started Wagner on Ketoprophen for pain, in addition to
his Norco prescription. R. 605.
On April 24, 2013, Wagner saw Dr. Oligschlaeger for back and neck
pain. Wagner reported that he was having pain. Wagner again reported
that the worker’s compensation insurer had not yet approved surgery. He

3

The treatment note stated that Dr. Oligschlaeger prescribed Vicodin; however, he issued a prescription
dated March 21, 2013, for hydrocodone/acetaminophen. Vicodin is a combination of hydrocodone and
acetaminophen. Dorland’s Illustrated Medical Dictionary (32nd ed. 2012) (Dorland’s), at 2055.

Page 11 of 39

was running out of pain medication and had no money to buy more.
Wagner gave Dr. Oligschlaeger some papers from Wagner’s lawyer for
Dr. Oligschlaeger to complete. On examination, Wagner was 5 feet 11¼
inches tall and weighed 258 pounds. His neck was supple with full
range of motion. Dr. Oligschlaeger assessed neck and back pain.
Dr. Oligschlaeger refilled the pain medication prescription.
Dr. Oligschlaeger concluded, “He appears to be stuck in a catch 22 right
now as he needs to have further testing to confirm and plan surgery but he
has no job or money to pay for it.” R. 558.
On April 24, 2013, Dr. Oligschlaeger prepared Residual Functional
Capacity Report on Wagner. Dr. Oligschlaeger opined that if Wagner
performed work at the sedentary level, he would suffer pain that would
cause him to take additional breaks totaling an hour or more per day over
and above typically allowed breaks. R. 535. Dr. Oligschlaeger opined that
Wagner would be absent more than three times per month due to his
impairments or treatment for his impairments. Dr. Oligschlaeger
concluded, “He appears to have suffered injury to the neck that has
affected his arms. He now is limited due to pain. His evaluation by
specialists has been hampered by his lack of insurance & money to pay for
the evaluation.” R. 537.
Page 12 of 39

On June 18, 2013, state agency physician Dr. Sandra Bilinsky, M.D.,
prepared a Residual Functional Capacity Assessment of Wagner.
Dr. Bilinsky’s concurred with Dr. Gotway’s February 12, 2013, opinions of
Wagner’s residual functional capacity. R. 124-25.
On October 18, 2013, Wagner saw Dr. Julian Vassay, M.D., for a
follow up after an emergency room visit. Wagner had gone to the
emergency room on October 15, 2013, for right foot pain diagnosed as
gout. The emergency room physicians prescribed Norco and prednisone.
Wagner reported to Dr. Vassay that his pain definitely improved on the
prednisone. Wagner reported that he had a long history of foot pain. On
examination, Wagner had some diffuse tenderness over the right base of
the great toe. Wagner stated that he did not have any warmth, erythema,
induration or swelling. Dr. Vassay continued Wagner’s medications and
drew blood to test Wagner’s uric acid levels. Dr. Vassay recommended
that Wagner cut back on his beer consumption. R. 563-64. The blood test
showed elevated uric acid levels. Dr. Vassay prescribed allopurinol to
reduce Wagner’s uric acid level. R. 567.
On December 16, 2013, Wagner saw Dr. Vassay. Wagner reported
his gout pain had improved. He had only one minor gout flare since
starting the allopurinol. Wagner also reported right leg pain unrelated to his
Page 13 of 39

gout. On examination, Dr. Vassay found no evidence of gout. Dr. Vassay
ordered x-rays of the right leg and referred Wagner to an orthopedic
specialist. R. 567.
On March 7, 2014, Wagner underwent an x-ray of his cervical spine.
The x-ray showed mild degenerative disk disease at the C5-C6 and C6-C7
levels, with marked osteophytic impingement upon the left intervertebral
foramen at the C5-C6 level; and moderate levoscoliosis of the upper
cervical spine, which had increased since Wagner’s February 17, 2012,
x-ray. R. 594.
On March 17, 2014, Wagner saw neurologist Dr. Dove for EMG and
nerve conduction studies of Wagner’s upper limbs. The EMG examination
showed abnormal denervation changes, but the nerve conduction studies
showed normal conduction velocities. Dr. Dove concluded that the studies
were consistent with left C6 and left C7 radiculopathy. Dr. Dove found no
evidence of generalized polyneuropathy or a specific distal entrapment
syndrome. R. 595.
On March 19, 2014, Dr. Dove performed EMG and nerve conduction
studies of Wagner’s lower limbs. The test results were normal. Dr. Dove
stated that the test results did not support a finding of either lumbar or

Page 14 of 39

sacral radiculopathy, generalized peripheral polyneuropathy, or a specific
distal entrapment syndrome. R. 599.
On March 24, 2014, Wagner underwent an MRI of his cervical spine.
The MRI showed neural foraminal encroachment on the left at C5-C6 and
C6-C7. On March 26, 2014, Wagner underwent an MRI of his lumbar
spine, which was benign. R. 604.
On April 21, 2014, Wagner saw Dr. Marshall Brustein, M.D. Wagner
reported neck pain and right shoulder pain. Wagner reported that the pain
moderately limited his activities. On examination, Dr. Brustein found
moderate weakness in the rotator cuff. The impingement test was positive,
and the Yergason’s test was positive.4 X-rays taken that day did not show
any fractures or dislocations. The x-rays also did not show any osseous
abnormalities. Dr. Brustein diagnosed rotator cuff syndrome. Dr. Brustein
prescribed occupational/physical therapy for six weeks. R. 569-72.
On May 21, 2014, Wagner saw neurosurgeon Dr. Dold again. At this
time, Wagner complained primarily about pain in his left hip. Wagner
reported that his left hip socket was very painful. He reported that he could
not walk. He reported that the pain radiated down his left leg. Wagner
reported no pain in his right hip. Wagner reported that he could not bend
4

Yergason’s test is a test designed to diagnose biceps tendon instability or tendonitis. Woodard, “The
Painful Shoulder: part I. Clinical Evaluation,” 61 American Family Physician (May 15, 2000), at 3079-88,
available at www.aafp.org/afp/0515/p3079.html, viewed on June 1, 2016.

Page 15 of 39

over and could not trim his toenails due to the pain. Wagner also reported
severe pain in his neck and tingling in both arms. R. 583.
On examination, Dr. Dold found that Wagner’s neck had decreased
range of motion and diffuse tenderness. Proximal and distal motor power
was normal, but Wagner had some giveaway weakness proximally and
distally. Wagner had decreased pinprick sensation in his left hand.
Wagner reported pain on manipulation of both of his hips. Proximal and
distal motor power was good in the lower extremities. Wagner had sensory
changes in the left foot. The range of motion of his lumbar spine was
restricted, and the lumbar spine had several areas of tenderness.
Wagner’s gait was antalgic. Lumbar studies performed in March 2014
showed advanced degeneration at L4-5 and L5-S1 with some disc
pathology at L4-5, but no “overtly worrisome nerve root compression.”
Dr. Dold recommended gathering more information about Wagner’s hip.
R. 584.
On June 20, 2014, Wagner saw Dr. Dold for a follow-up examination.
Dr. Dold stated that prior radiographic studies showed fairly advanced
multilevel cervical and lumbar spondylosis. X-rays taken at this visit
showed severe degenerative changes in Wagner’s left hip with deformity

Page 16 of 39

and significant lipping. The x-rays showed some degenerative disease in
the right hip, but no fracture or bone destruction. R. 586, 589, 591. The
x-ray of the pelvis also showed that, “Avascular necrosis involving the left
femoral head may be present.” R. 588. Dr. Dold concluded, in part, “Mr.
Wagner’s main complaint of pain currently revolves around his left hip. It
would certainly seem that there is good radiographic and clinical correlation
for significant hip disease with appears to be disabling.” Dr. Dold
recommended referral to an orthopedic specialist. At Dr. Oligschlaeger’s
suggestion, Dr. Dold referred Wagner to orthopedic surgeon Dr. Jacob
Sams, M.D. R. 586.
On August 7, 2014, Wagner went to see Dr. Dold. Wagner reported
that he saw Dr. Sams and received an injection in his left hip that gave him
“some temporary relief.” Wagner reported that he still had pain in his neck,
right arm, back, left leg, and right hip. Dr. Dold found that the most recent
x-rays of Wagner’s pelvis and hips showed severe “changes on the left”
and “evidence of avascular necrosis per the radiology report.” R. 611.
On examination, Dr. Dold found that Wagner was in “moderate
discomfort.” Wagner’s pain behavior was “not as prominent as it has been
in the past.” Wagner’s range of motion in his neck was “moderately
restricted with multiple points of tenderness.” Wagner experienced “severe
Page 17 of 39

pain with manipulation of his left hip,” and “moderate” pain with
manipulation of the right. The range of motion of his lumbar spine was
“moderately restricted.” Dr. Dold stated that Wagner’s prior tests showed
“an extensive spondylosis.” Dr. Dold added, “I do not see any overtly
worrisome compromise of the neural elements. His EMG and nerve
conduction study showed some radiculopathy at C6 and C7.” R. 611.
Dr. Dold noted that he understood that Wagner might be a candidate
for hip replacement in the future. Dr. Dold stated that Wagner was
scheduled to see Dr. Sams again and also scheduled to see a
rheumatologist. Dr. Dold planned to see Wagner again after Wagner saw
these other specialists. Dr. Dold concluded, “In the meantime he can
continue with his usual activities using common sense precautions.”
R. 611.
On August 19, 2014, the Administrative Law Judge (ALJ) conducted
an evidentiary hearing. The ALJ conducted the hearing in Peoria, Illinois.
Wagner and his attorney appeared by videoconference from Decatur,
Illinois. Vocational expert James Ragains also appeared in Peoria. R. 41.5
At the beginning of the hearing, the ALJ asked Wagner’s attorney, “[I]s the
record complete or are there still records outstanding that need to be
5

Ragains’s name is incorrectly spelled “Regains” in the transcript of the hearing. E.g., R. 39, 41.
Ragains’s resume and the ALJ’s decision both state that his name is spelled “Ragains.” R. 12, 194.

Page 18 of 39

submitted before I make my decision?” The attorney stated that the record
was complete. R. 43.
Wagner then testified at the hearing. Wagner testified that he was 5
feet 11 inches tall and weighed 245 pounds. He was divorced. He had two
sons ages 19 and 14 years old. The sons lived with their mother. Wagner
lived with his parents in a one-story home. R. 44-46. Wagner testified that
his parents supported him. Wagner testified that his parents received
Social Security retirement benefits and worked pulling trailers across the
United States. R. 50.
Wagner testified that the home had three steps to get to the front
door. Wagner testified that he experienced pain in his neck, back, hips,
and lower extremities when he walked up stairs. R. 46.
Wagner testified that he drove a car about once a week. He usually
drove about eight to ten miles. Wagner testified that his father drove him
the thirty-five miles to the hearing. Wagner testified that he was unable to
drive that distance due to pain. R. 47.
Wagner testified that he did not smoke, but he used chewing tobacco.
He also testified that he drank about three beers a day. The ALJ noted that
Wagner alleged in his 2009 Disability Benefits application that he was an
alcoholic. The ALJ asked whether Wagner was currently drinking the same
Page 19 of 39

amount as he was in 2009. Wagner testified that in 2009 he drank six to
eight beers and whiskey daily. He testified that he cut back “because of the
pain medicine that I’m on.” R. 47. He testified that he no longer drank hard
liquor. R. 48. Wagner testified that his mother, his brother, and friends
provided him with beer. He testified that he also bought beer with some of
the money that he still had from when he was working. R. 70.
Wagner testified that he filed a worker’s compensation claim for the
injuries he suffered on February 4, 2012. He testified that his claim was
denied. Wagner testified that he had not received any unemployment
insurance benefits or other disability benefits since February 2012.
R. 51-52.
Wagner testified that he previously worked as a bartender and
manager at a steakhouse. He left that job when the steakhouse closed in
2009. He then worked as a packager, loading sleeves of paper cups into
boxes. He left that job when he was injured in February 2012. He testified
that he had been unable to work since then because of the pain. R. 52.
Wagner testified that he spent about half of each day lying down or
reclining because of his pain. He testified that he had pain in his neck,
shoulders, throughout his upper extremities down to his fingertips, and his
hips. R. 55. Wagner testified that if he sat up to drink coffee and read the
Page 20 of 39

newspaper, “my neck is so bothering me I got to get up, I got to go lay
down until the pain goes away.” R. 55. Wagner testified that he played
games on a PlayStation about twenty to thirty minutes at a time, for a total
of about an hour a day. R. 73. He testified that he watched television
about five to six hours a day. 74. Wagner testified that he played with his
PlayStation and watched television while lying down. R. 78-79.
Wagner testified that his mother usually cooked the evening meal.
He poured a bowl of cereal if he wanted something during the day. He
testified that when his parents were gone, “I just get a bowl of cereal or just
something quick and easy to fix in the microwave.” R. 56.
Wagner testified that he slept about four to five hours a night. He
testified that he typically took one nap a day for up to an hour. Wagner
testified that his pain woke him up during the night and during his daytime
nap. R. 74.
Wagner testified that he was in severe pain every day. He testified
that the pain would become unbearable if he did not lie down or recline
much of the day. R. 56. Wagner testified that “[j]ust getting up moving
around, being on my feet” triggered his pain. He testified that reading a
paper hurt his neck “to where I can’t finish the paper.” R. 66.

Page 21 of 39

Wagner testified that he did his some laundry, and he washed his
cereal bowl. R. 57. Wagner testified that his mother did most of the
laundry for the household. Wagner estimated that he did two out of every
ten loads of laundry for the household. R. 58. Wagner testified that “if I’m
not feeling too bad, I might push the vacuum sweeper, but I can’t finish a
room without taking a break.” R. 57. Wagner testified that the last time he
vacuumed was a couple of weeks before the hearing. R. 59-60. Wagner
testified that he did not move furniture when he vacuumed. He usually had
to take a ten to fifteen minute break after vacuuming one-quarter of a room.
Wagner testified that he did not vacuum on a day that he did laundry.
R. 60. Wagner testified that he did not do any yardwork or other work
outside the house. R. 61.
Wagner testified that he went grocery shopping with his mother about
once every two weeks. He then testified that he went about once every
three weeks. R. 61-62. He testified that on 60 to 70 percent of these
shopping trips, he stayed in the car at the grocery store while his mother
shopped. Wagner testified that when he went into the store, he sat on a
bench while his mother shopped. R. 63.
Wagner testified that he did not go out to visit with friends. He
testified that he went to a family reunion about three months before the
Page 22 of 39

hearing. He testified that he did not attend any group, organization, or
church activities. R. 75.
Wagner testified that he could not touch his left foot, put on a sock, or
clip his toenails because of his hip pain. R. 64. Wagner testified that
movement and walking triggered his hip pain. R. 66.
Wagner testified that he also had difficulty dressing himself. R. 64.
He needed help putting on his left sock. He also needed help putting on a
pullover sweater. R. 66. He testified that he also had difficulty bathing and
showering because of the pain. R. 65. He testified that he could wash
himself and take care of his personal hygiene, but the process took longer
because of the pain. R. 66.
Wagner testified that he could walk about three yards before he
needed to stop. He testified that he used a walker when he had gout. He
testified that he could stand for “[n]o more than an hour.” R. 67. He
testified that he needed to lie down after standing to relieve the pain in his
neck and his hip. He testified that he could sit for thirty to forty-five minutes
at a time. He testified that he needed to lie down after sitting due to the
pain. R. 68.
Wagner testified that he could lift ten to twenty pounds. He testified
that he had “a hard time lifting a gallon of milk.” R. 76. Wagner testified
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that he used the term “hard time” to mean that his arm would go numb. He
testified that he could lift a two-pound plate without having a “hard time.”
R. 79. Wagner testified that using his left arm caused pain in his neck.
R. 80.
Wagner testified that grabbing something or raising his right arm
caused pain in his right shoulder. R. 68-69. Wagner testified that he had
numbness and tingling in his right hand. He testified that the numbness
and tingling increased with movement, such as turning a door knob or
pulling up a zipper. R. 77.
Wagner testified that he could not write a letter for a job application
without having to take a break. He testified that he could not write while
sitting at a table for more than fifteen minutes. He testified that after fifteen
minutes he would need to lie down for an hour before he could continue.
R. 80-81.
Wagner testified that his gout flared up about four to five times a year.
He testified that these episodes of gout lasted for a week to a week and a
half. Wagner testified that his diet did not affect his gout symptoms. He
testified that his doctors recommended that he stop drinking to help reduce
flare ups of gout pain. R. 70.

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Wagner testified that his doctors told him he needed surgery on his
neck and hips. R. 64. Wagner testified that he would undergo the
recommended surgeries if he had the resources to pay for them. R. 65. He
testified that his goal would be, “Getting it fixed,” and to “Get better.” R. 65.
Wagner testified that he was not receiving any mental health
treatment. Wagner testified, however, that he was “depressed all the time.”
He testified that he could not afford mental health treatment. He did not try
to get mental health services from low income clinics. R. 71-72.
Vocational expert Ragains also testified at the hearing. Through a
series of hypothetical questions, the ALJ asked Ragains whether a person
with Wagner’s age, education, and work experience could perform any of
Wagner’s prior relevant work if the person is limited to sedentary work in
which the person: can lift no more than ten pounds; can stand or walk no
more than a total of two hours in an eight-hour workday; must be allowed to
alternate between sitting and standing every thirty minutes for five minutes;
must not climb ladders, ropes or scaffolds; may only occasionally climb
ramps and stairs, kneel, crouch, and crawl; may only occasionally reach
overhead bilaterally; may not constantly handle or finger bilaterally, but may
frequently handle and finger bilaterally; and must avoid concentrated
exposure to hazardous machinery and unprotected heights. R. 86, 88-89.
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Ragains opined that such a person could not perform Wagner’s prior
work as a hand packager and bartender/restaurant manager, as he
performed those jobs. Ragains opined that such a person could perform
representative jobs of a food and beverage order clerk, with 900 such jobs
in Illinois and 19,400 nationally; and a sedentary final assembler, with
1,700 such jobs in Illinois and 28,500 nationally. R. 87-89.
Wagner’s counsel stated to the ALJ during his examination of
Ragains that, “I don’t have a problem with [Ragains’] qualifications,” but
noted that the record did not contain a statement of Ragains’ qualifications.
R. 93. Wagner’s counsel asked that such a statement be included in the
record. The ALJ agreed. R. 93-94. Ragains’ resume listing his
qualifications was added to the record. R. 194-96. The hearing concluded
at the end of Ragains’ testimony.
THE DECISION OF THE ALJ
On September 2, 2014, the ALJ issued her decision. The ALJ
followed the five-step analysis set forth in Social Security Administration
Regulations (Analysis). 20 C.F.R. §§ 404.1520, 416.920. Step 1 requires
that the claimant not be currently engaged in substantial gainful activity.
20 C.F.R. §§ 404.1520(b), 416.920(b). If true, Step 2 requires the claimant
to have a severe impairment. 20 C.F.R. §§ 404.1520(c), 416.920(c). If
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true, Step 3 requires a determination of whether the claimant is so severely
impaired that he is disabled regardless of his age, education and work
experience. 20 C.F.R. §§ 404.1520(d), 416.920(d). To meet this
requirement at Step 3, the claimant's condition must meet or be equal to
the criteria of one of the impairments specified in 20 C.F.R. Part 404
Subpart P, Appendix 1 (Listing). 20 C.F.R. §§ 404.1520(d), 416.920(d). If
the claimant is not so severely impaired, the ALJ proceeds to Step 4 of the
Analysis.
Step 4 requires the claimant not to be able to return to his prior work
considering his age, education, work experience, and Residual Functional
Capacity (RFC). 20 C.F.R. §§ 404.1520(e) and (f), 416.920(e) and (f). If
the claimant cannot return to his prior work, then Step 5 requires a
determination of whether the claimant is disabled considering his RFC,
age, education, and past work experience. 20 C.F.R. §§ 404.1520(g),
404.1560(c), 416.920(g), 416.960(c). The claimant has the burden of
presenting evidence and proving the issues on the first four steps. The
Commissioner has the burden on the last step; the Commissioner must
show that, considering the listed factors, the claimant can perform some
type of gainful employment that exists in the national economy. 20 C.F.R.
§§ 404.1512, 404.1560(c); Weatherbee v. Astrue, 649 F.3d 565, 569 (7th
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Cir. 2011); Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 352 (7th Cir.
2005).
The ALJ found that Wagner met his burden at Steps 1 and 2.
Wagner had not engaged in substantial gainful activity since February 12,
2012, and Wagner suffered from the severe impairments of degenerative
disc disease of the cervical spine and radiculopathy in the upper
extremities, degenerative disease of the hips bilateral, right shoulder
tendinopathy, remote history of lumbar spine surgery, gout, and obesity.
R. 14.
The ALJ found at Step 3 that Wagner’s impairments or combination
of impairments did not meet or equal a Listing. The ALJ considered the
Listings for dysfunction of major joint, disorders of the spine, and
inflammatory arthritis. R. 17.
The ALJ also addressed the impact of Wagner’s obesity. The ALJ
stated that she considered the Social Security Administration guidelines
regarding the effect of obesity. The ALJ quoted a portion of those
guidelines which stated that obesity “may or may not increase the severity
or functional limitations of other impairments.” R. 17 (quoting SSR 02-1.).
The ALJ stated that she “has fully considered obesity in the context of the
overall record evidence in making this decision.” R. 17.
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At Step 4, the ALJ determined that Wagner had the following RFC:
[T]he claimant has the residual functional capacity to perform
sedentary work . . . except limited to lifting no more than 10
pounds; standing or walking no more than 2 hours in an 8-hour
work day; must be allowed to alternate between sitting and
standing every 30 minutes for 5 minutes; no climbing ladders,
ropes or scaffolds; occasional climbing ramps and stairs,
kneeling, crouching, and crawling; no more than occasional
overhead reaching bilaterally; no constant handling or fingering
bilaterally; and must avoid concentrated exposure to hazardous
machinery and unprotected heights.
R. 18. The ALJ relied on the various medical records that described
Wagner’s medical impairments as moderate to mild, Dr. Chapa’s
consultative examination, and the opinions of agency physicians
Drs. Gotway and Bilinsky. R. 19-22. The ALJ also relied on Wagner’s
testimony that he could lift ten pounds and sit for thirty to forty-five minutes
at a time before he needed to move around, and relied on the 2010
Physical Impairments Questionnaire in which Wagner stated that he could
sit for two hours at a time. R. 18. The ALJ found:
In terms of the claimant's alleged degenerative disc
disease of the cervical spine and radiculopathy in the upper
extremities, degeneration of the hips bilaterally, right shoulder
tendonopathy, remote history of lumbar spine surgery, and
obesity, the longitudinal medical evidence of record does not
show these impairments prevent the claimant from engaging in
all substantial gainful activity. The diagnostic, objective and
clinical findings are not shown to be reasonably correlated to
pain symptoms or functional limitations that have occurred with
such frequency or severity throughout the period under
consideration so as to render the claimant disabled.
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R. 19.
The ALJ found that Wagner’s statements were not fully credible
regarding the severity of his functional limitations due to his pain. The ALJ
found that Wagner’s statements about the severity of his pain were “so
extreme, at times, as to appear implausible, which calls into question the
credibility of the claimant’s alleged chronic, disabling pain symptoms.”
R. 19. The ALJ noted that Wagner regularly rated his pain at a 10 out of
10, but found this representation to be inconsistent with numerous medical
reports which found moderate to mild findings on imaging reports and
physical examinations that found normal strength and moderate to no
limitation in his range of motion of his joints and spine.
The ALJ gave no weight to the opinions of Dr. Oligschlaeger. The
Court first addressed the April 4, 2012 unsigned note from the offices of
Dr. Oligschlaeger and Physician’s Assistant Hayden that Wagner was
unable to work at this time. The ALJ found that the statement was
conclusory. The ALJ found it significant that Dr. Oligschlaeger did not use
the term “disabled.” The ALJ found that the statement that Wagner was
unable to work meant he could not return to his past work, not that Wagner
was disabled. The ALJ also found that an opinion that Wagner was
disabled was inconsistent with the other evidence in the record.
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The ALJ also gave no weight to Dr. Oligschlaeger’s April 24, 2013,
Residual Functional Capacity Report. The ALJ stated that he gave no
weight to this opinion for the same reason that he gave no weight to the
April 4, 2012, “unable to work” comment. The ALJ found that the
assessment was outside Dr. Oligschlaeger’s area of expertise. The ALJ
found that Dr. Oligschlaeger appeared to be acting out of sympathy toward
Wagner. The ALJ also found that Dr. Oligschlaeger’s opinions were not
supported by other evidence in the record. As an example, the ALJ noted
that Dr. Oligschlaeger stated that Wagner had decreased grip strength, but
Dr. Oligschlaeger’s treatment notes did not mention decreased grip
strength and Dr. Chapa’s consultative examination found normal grip
strength. R. 23.
The ALJ also discounted Dr. Dold’s reference to avascular necrosis in
Wagner’s hip. The ALJ found that the radiology report did not support a
finding of avascular necrosis. R. 23.
The ALJ concluded at Step 4 that Wagner could not return to his prior
work. At Step 5, the ALJ found that Wagner could perform a significant
number of jobs that existed in the national economy. The ALJ relied on the
Medical-Vocational Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2,
and the testimony of vocational expert Ragains. Based on Ragains’
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testimony, the ALJ found that Wagner could perform the representative
jobs of food/beverage clerk, and assembly/final. The ALJ concluded that
Wagner was not disabled.
Wagner appealed to the Social Security Administration Appeals
Council. On November 5, 2014, Wagner sent additional medical records to
the Appeals Council. R. 613-57. The records included the records from
Wagner’s July 1, 2014, appointment with Dr. Sams. Dr. Sams stated that
the x-rays of Wagner’s hips showed severe joint space narrowing of the
femoroacetabular joint with osteophyte formation and subchondral sclerotic
changes. R. 613. The range of motion in Wagner’s hip was limited and
painful. Dr. Sams gave Wagner a steroid injection in his left hip. R. 614.
On February 26, 2015, the Appeals Council denied Wagner’s request
for review. As a result, the decision of the ALJ became the final decision of
the Defendant Commissioner. R. 1. Wagner has now filed this action for
judicial review.
ANALYSIS
This Court reviews the Decision of the Commissioner to determine
whether it is supported by substantial evidence. Substantial evidence is
“such relevant evidence as a reasonable mind might accept as adequate”
to support the decision. Richardson v. Perales, 402 U.S. 389, 401 (1971).
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This Court must accept the findings if they are supported by substantial
evidence, and may not substitute its judgment. Delgado v. Bowen, 782
F.2d 79, 82 (7th Cir. 1986). This Court will not review the credibility
determinations of the ALJ unless the determinations lack any explanation
or support in the record. Elder v. Astrue, 529 F.3d 408, 413-14 (7th Cir.
2008). The ALJ must articulate at least minimally her analysis of all
relevant evidence. Herron v. Shalala, 19 F.3d 329, 333 (7th Cir. 1994).
The ALJ must “build an accurate and logical bridge from the evidence to his
conclusion.” Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000).
In this case, the ALJ misread some of the 2014 medical evidence
related to Wagner’s hip and failed to minimally articulate her analysis of
Dr. Dold’s August 21, 2014 examination findings. Dr. Dold’s report is at
pages 610-613 of the record. The ALJ misread, or did not read, the 2014
radiologist report on x-rays of Wagner’s hip. The ALJ stated that the report
did not mention the possibility of avascular necrosis. R. 23. The
radiologist, however, mentioned that avascular necrosis cannot be entirely
excluded and should be considered in his July 20, 2014 imaging report. R.
588. Due to this error, the ALJ erroneously stated that Dr. Dold’s August
21, 2014, reference to a radiology report that showed evidence of

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avascular necrosis was not supported by evidence in the record. R. 23. In
so doing, the ALJ erred in her analysis of Dr. Dold’s examination findings.
In addition, the ALJ failed to address Dr. Dold’s June 20, 2014,
opinion that Wagner had “significant hip disease which appears to be
disabling.” R. 588. Dr. Dold did not render this opinion in a one-time
consultation. Dr. Dold saw Wagner three times for his hip pain. Dr. Dold
reviewed past x-rays of Wagner’s spine and ordered x-rays of Wagner’s
hip. In light of the extensive nature of Dr. Dold’s examination and his
expertise as a neurosurgeon, the ALJ erred in not addressing Dr. Dold’s
opinion.
The Commissioner argues that the ALJ adequately articulated her
analysis of Dr. Dold’s findings regarding Wagner’s hip. The Commissioner
argues that the ALJ did not need to address Dr. Dold’s opinion directly
because she adequately evaluated Dr. Dold’s examination note regarding
Wagner’s hip. The Commissioner also argues that the ALJ’s erroneous
statement about radiology reports failing to mention avascular necrosis was
harmless. The Court disagrees. Dr. Dold’s examination notes and
Wagner’s hip x-rays formed a material part of the evidence in the record
regarding Wagner’s hip. The ALJ (1) misread the radiology report,

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(2) erroneously discounted Dr. Dold’s statements regarding avascular
necrosis as a result of the misreading of the report, and (3) failed to
address Dr. Dold’s opinion that the hip condition appeared to be disabling.
The combination of these errors is not harmless. The ALJ failed to
minimally articulate her analysis of relevant material evidence regarding
Wagner’s hip. The case therefore must be remanded.
Wagner fails to demonstrate any of his other claims of error. The
ALJ’s RFC finding was supported by the opinions of Drs. Gotway (R. 105106) and Bilinsky (R. 124-125). The ALJ’s typographical error in her
citations to the record are not grounds for reversal.6 Wagner’s assignment
of error based on this typographical error borders on the frivolous.
The ALJ also adequately discussed the other opinion evidence in the
record. The failure to mention details of Dr. DeGrange’s opinion was not
material because Dr. DeGrange concluded that Wagner could perform
light duty work. The ALJ’s findings, therefore, were consistent with
Dr. DeGrange’s opinion of Wagner’s functional limitations. The ALJ
adequately considered the note from Dr. Oligschlaeger’s office that Wagner
could not return to work. The ALJ reasonably concluded the note referred
to returning to his packing job, not returning to any work generally.
6

The ALJ confused Exhibits 3F, 5F, and 7F with Exhibits 3A, 5A, and 7A, as pointed out on page three of
the Commissioner’s Memorandum in Support of Motion for Summary Affirmance (d/e 22, p.3).

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The ALJ’s decision to give no weight to Dr. Oligschlaeger’s April 24,
2013, opinion is also supported by substantial evidence. A treating
physician’s opinions are entitled to controlling weight if the opinion is wellsupported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other evidence in the record.
20 C.F.R. § 404.1527(d)(2); see Bauer v. Astrue, 532 F.3d 606, 608 (7th
Cir. 2008). Dr. Oligschlaeger’s opinions were inconsistent with other
objective medical findings that showed Wagner had mild to moderate
impairments and limitations in his spine and shoulders. The
inconsistencies in the evidence supported the ALJ’s decision to give no
weight to Dr. Oligschlaeger’s opinions.
The ALJ did not cherry pick the record. The ALJ thoroughly reviewed
the record. The ALJ erred with respect to the evidence regarding Wagner’s
hip as discussed above, but she did not cherry pick the record. Wagner
essentially wants the Court to reweigh the medical evidence. This the
Court will not do. See Young v. Barnhart, 362 F.3d 995, 1001 (7th Cir.
2004).
The Vocational Expert Ragains’ testimony was consistent with the
Department of Labor’s Dictionary of Occupational Titles. See SSR 00-4p.
Ragains opined on the number of available jobs in Illinois and the nation, a
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topic not covered by the DOT. Ragains’ opinions on topics not addressed
by the DOT are not inconsistent with the DOT.
Wagner also cites several decisions in rebuttal that question the
validity of vocational expert opinions on numbers of available jobs. See
Alauro v. Colvin, 797 F.3d 503, 507 (7th Cir. 2015); Herrmann v. Colvin, 772
F.3d 1110, 1112-14 (7th Cir. 2014); Browning v. Colvin, 766 F.3d 702, 709
(7th Cir. 2014). In this case, however, Wagner’s counsel did not challenge
the qualifications of vocational expert Ragains or challenge the validity of
his opinions regarding the number of available jobs in Illinois or the national
economy. R. 93. Therefore, Ragains’ opinions were unchallenged expert
opinions from an acknowledged expert, and so, provided substantial
evidence to support the ALJ’s finding regarding the number of the particular
jobs cited by Ragains in Illinois and nationally.
The ALJ also adequately considered Wagner’s obesity. She stated
that she included considerations of Wagner’s obesity throughout her
decision. R. 19. Absent some more specific reference to evidence in the
record about the impact of Wagner’s obesity, the Court sees no error. See
Hisle v. Astrue, 258 F.App’x, 33, 37 (7th Cir. 2007) (“[T]he claimant must
articulate how her obesity limits her functioning and exacerbates her
impairments.”).
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Lastly, the ALJ’s credibility determination is supported by substantial
evidence. This Court will not review the credibility determinations of the
ALJ unless the determinations lack any explanation or support in the
record. Elder v. Astrue, 529 F.3d 408, 413-14 (7th Cir. 2008). The ALJ
found inconsistencies in Wagner’s claims of debilitating pain and indicated
some exaggeration of the effects of his pain. The Court agrees. Wagner
reported that his pain was 10 out of 10. See R. 481, 527. He testified that
his pain was almost totally debilitating. See generally, R. 46-89. On April
21, 2014, however, Wagner reported to Dr. Brustein that his complaints
moderately limited his activities. R. 659. Several other medical
examinations found either no or only moderate limitations on range of
motion and strength. The ALJ could reasonably conclude that Wagner’s
testimony was inconsistent with his report to Dr. Brustein and the
examinations that found normal strength and range of motion. Wagner
also reported in his December 2012 Adult Function Report that he could
walk fifty yards before he needed to stop and rest. R. 292. Wagner
testified at the hearing that he could only walk “three yards, maybe not
even that” before he had to stop and sit down. R.67. Wagner’s inconsistent
testimony supports the ALJ’s conclusion that Wagner exaggerated the

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severity of his limitations due to pain. The Court will not disturb the
credibility finding.
The Court does not reach the claims that the Appeals Council erred
because the ALJ can consider the additional evidence on remand.
THEREFORE, Plaintiff’s Motion for Summary Judgment (d/e 18) is
ALLOWED, and Defendant’s Motion for Summary Affirmance (d/e 21) is
DENIED. This matter is REVERSED AND REMANDED pursuant to
sentence four of 42 U.S.C. § 405(g). THIS CASE IS CLOSED.
ENTER: June 24, 2016

s/ Tom Schanzle-Haskins
UNITED STATES MAGISTRATE JUDGE

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