Yerk v. Colvin

Filing 13

DECISION AND ORDER signed by Judge Lynn Adelman on 5/1/15 that the ALJs decision is AFFIRMED, and this case is DISMISSED. The Clerk is directed to enter judgment accordingly. (cc: all counsel)(dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

JAMES A. YERK
Plaintiff,
v.

Case No. 14-C-1216

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

DECISION AND ORDER
Plaintiff James Yerk applied for social security disability benefits, claiming that he could
no longer work due to a shoulder injury and depression, but the Social Security Administration
(“SSA”) denied his application initially and on reconsideration, as did an Administrative Law
Judge (“ALJ”) following a hearing. Plaintiff requested review by the Appeals Council,
submitting additional evidence in support of his claim, but the Council denied review. Plaintiff
now seeks judicial review pursuant to 42 U.S.C. § 405(g), arguing that the ALJ erred in
evaluating the credibility of his allegations and in determining his residual functional capacity
(“RFC”), and that the Council erred in rejecting his new evidence.
I. FACTS AND BACKGROUND
A.

Medical Evidence
Plaintiff injured his shoulder at work in August 2006. (Tr. at 376, 400.) The injury failed

to respond to conservative treatment, and a May 1, 2008, MRI revealed degenerative
changes at the acromioclavicular joint, with mild impingement on the supraspinatus muscle;
a benign lesion at the metaphyseal region of the humerus; and a cluster of tiny intraosseous

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cysts close to the insertion of the supraspinatus muscle on the head of the humerus. (Tr. at
284-85.)
On May 29, 2008, plaintiff saw Dr. John Horan, an orthopedist, in consultation,
reporting a two year history of pain in his right shoulder. He had received multiple treatments,
including medication, cortisone shots, and physical therapy. He reported numbness,
weakness, and pain all the time. Percocet no longer helped, even though he took twice as
many as indicated. He was currently using Vicodin, which helped somewhat. On exam, he
had positive impingement sign and was tender to adduction of his arm.

He was

neurovascularly intact to his fingers. Dr. Horan found plaintiff’s condition consistent with
chronic impingement or rotator cuff repair. Plaintiff had failed conservative treatment, so
surgical intervention was indicated. Dr. Horan planned an acromioplasty and distal clavicle
excision with and without rotator cuff repair. (Tr. at 263.)
On June 24, 2008, plaintiff underwent a pre-operative evaluation (Tr. at 322-24), and
on June 30, 2008, Dr. Horan performed the surgery. Dr. Horan listed pre-operative diagnoses
of chronic impingement, right shoulder, and degenerative joint disease, right acromioclavicular
joint. He performed an acromioplasty, right shoulder, and right distal clavicular excision. (Tr.
at 325.) Plaintiff tolerated the procedure well and was transferred to the recovery room in
stable condition. (Tr. at 326.)
On July 15, 2008, plaintiff returned to Dr. Horan for follow up with no complaints. He
appeared to be doing reasonably well in the early post-operative period. He was to start
physical therapy in two weeks and return to the office in six weeks, entertaining his return to
work at that time. (Tr. at 256.)
On July 29, 2008, plaintiff started physical therapy, with a chief complaint of difficulty
sleeping. He noted increased pain when not wearing a sling. He was unable to raise his arm
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up overhead and complained of pain in the right biceps region. (Tr. at 286.) He commenced
twice weekly sessions with the goal of decreasing pain and improving range of motion. (Tr.
at 287.) On August 18, plaintiff reported continued pain but had made progress in range of
motion. (Tr. at 290.)
On August 19, 2008, plaintiff returned to Dr. Horan, reporting continued pain and
stiffness in the shoulder. On exam, his incision was well-healed, he was neurovascularly
intact, and he had a positive impingement sign. He had external rotation of about 10 degrees
and forward flexion of about 95. Dr. Horan found him to be making extremely slow progress
in his post-operative physical therapy. Dr. Horan injected plaintiff’s right shoulder, with good
initial relief of symptoms. Plaintiff was to continue in physical therapy and return in four
weeks. (Tr. at 255.)
On September 2008, plaintiff’s therapy was continued to focus on strengthening. (Tr.
at 289, 294.) On October 7, he reported reduced pain, and the therapist noted that he had
shown good tolerance to advanced strengthening. (Tr. at 288.)
On October 9, 2008, plaintiff returned to Dr. Horan, reporting almost no pain and doing
more and more work, actually violating the restrictions he had. He had been doing his
strengthening exercises and was making good progress. On exam, his range of motion was
full, impingement sign negative, and with no tenderness to adduction of the arm across the
body. He appeared to be doing well and would return in 60 days. Dr. Horan released him
with no restrictions. (Tr. at 254.) On October 10, plaintiff discharged from physical therapy
to a home exercise program. (Tr. at 291.)
On November 4, 2008, plaintiff followed up with Dr. Horan, reporting that he did well
for the first two weeks back to full duty work but then started having increasing pain. On
exam, his range of motion was full, impingement sign moderate, neurovascularly intact,
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incision well-healed, with no edema. Dr. Horan found the recurrence likely due to his
increased workload. He provided an injection with good initial relief of symptoms. (Tr. at
253.)
On December 4, 2008, plaintiff advised Dr. Horan that he had some anterior soreness
but was able to do full duty work without much difficulty. On exam, his range of motion was
full in all planes. He had tenderness along the bicipital groove, which radiated into the muscle
belly of the biceps. He had no edema, erythema, or effusion. Dr. Horan believed him to be
doing quite well. (Tr. at 252.)
However, on May 8, 2009, plaintiff saw Dr. Todd Bradshaw, his primary care physician,
complaining of chronic shoulder pain. He reported not having the response expected from
the surgery. He continued to have a lot of pain, not responding to Ibuprofen. On exam, his
range of motion was diminished because of discomfort but passively they could get decent
range of motion. Dr. Bradshaw ordered imaging to check the source of the problem. (Tr. at
348, 356.) He also provided Percocet to use as needed, but the goal was not to use it long
term. (Tr. at 355-56.)
A May 16, 2009, MRI revealed post-operative changes; probable inflammation and/or
prior trauma involving the supraspinatus without clear evidence of a full-thickness rotator cuff
tear. However, the presence of artifacts related to metal fragments from the previous surgery
made it difficult to exclude a very small tear. (Tr. at 278-79, 304-05.)
On May 26, 2009, plaintiff saw Dr. Jeffrey Bentson for evaluation and management of
right shoulder pain on the request of Dr. Bradshaw. Plaintiff reported that he had gotten
worse since the surgery. He indicated that his condition improved slightly with physical
therapy, but the pain recurred after several weeks. (Tr. at 312.) On exam, plaintiff had
moderate tenderness in the acromioclavicular joint, no swelling or crepitation, mildly reduced
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range of motion, and positive impingement sign. (Tr. at 312-13.) Dr. Benston assessed pain
in the shoulder joint, recommending activity modification.

(Tr. at 313-14.)

They also

discussed resuming physical therapy, repeating injections, or decompression. Plaintiff was
to continue current medications, and Dr. Bentson would discuss chronic pain medications with
Dr. Bradshaw. (Tr. at 314.)
On June 18, 2009, plaintiff followed up with Dr. Bradshaw, requesting pain pills and
possibly a pain patch. Dr. Bradshaw explained that with treatment for chronic pain they were
not going to be able to get plaintiff completely pain free but were trying to improve his ability
to be functional with the pain medications and help bring the pain down to a significant extent.
They also talked about the side effects of narcotics, including constipation, drowsiness,
fatigue, and the addictive nature of the medications. Dr. Bradshaw reviewed the note from
Dr. Benston, which did not set forth a clear plan. Plaintiff did not want another surgery. He
reported having injections in the past, and they only worked for a little while so he was
probably not going to proceed with those either. For pain, Dr. Bradshaw tried the patch. (Tr.
at 347, 354.)
On November 2, 2009, plaintiff returned Dr. Bradshaw, reporting that he did great for
awhile on the Duragesic 12 pain patch, but that wore off so they increased to 25. That also
did great for awhile but now was not working as well either. Plaintiff had called the office
because he overdid it and wanted some short-term medications, which Dr. Bradshaw
provided. When he called for more, Dr. Bradshaw scheduled an office visit. Dr. Bradshaw
increased the Duragesic to 50, but stated: “He does understand we are not trying to
completely eliminate the pain but just make him more functional and he has really lost
function because of the pain lately.” (Tr. at 346, 353.)

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On November 30, 2009, plaintiff saw Dr. Bentson, reporting sleep problems, difficulty
breathing, constipation, joint pain, and numbness. He was taking Percocet three times per
day. (Tr. at 310.)
On March 30, 2010, plaintiff returned to Dr. Bradshaw, using more pain medication
because it was not working. He had signed a medication contract indicating the pills would
not be refilled early, and Dr. Bradshaw warned him about that. If plaintiff violated the contract
again, Dr. Bradshaw would no longer provide pain medications. There was some question
about him going to a pain clinic, but plaintiff had no insurance, and a pain clinic would be
unlikely to see him without any insurance. Dr. Bradshaw reset plaintiff’s medication due date
and changed him to 20 mg three times a day; he was not to take more than that. (Tr. at 345,
352, 374.)
On December 9, 2010, plaintiff followed up with Dr. Bradshaw, seeking a referral to a
pain clinic. He reported that he attempted to return to work but could not handle the lifting.
He also reported that the pain medications were not doing anything at the time. His mood
was becoming an issue as well. Dr. Bradshaw adjusted medication, going up from MS-Contin
(morphine) 30 to 60 mg three times per day. He also referred plaintiff to the Mercy pain clinic.
(Tr. at 344, 351, 373.)
On December 14, 2010, plaintiff saw Dr. Nathan Meloy at the pain clinic for evaluation
of his chronic right shoulder pain. He was on Morphine 60 mg three times per day and still
rated his pain 7/10. He reported an interest in applying for disability, indicating that he
recently attempted a job as a parts inspector but was unable to perform his duties because
of pain and had to quit. He had received a second opinion from an orthopedic surgeon, who
felt there was no further surgical pathology. He had injections in the past, which provided
relief for about one month. He had not done any recent course of physical therapy. (Tr. at
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319.) On exam, deep tendon reflexes were 2+ in the bilateral upper extremities, cervical
range of motion was full in all planes, shoulder range of motion was full in all planes with
increased pain on resistance to abduction and adduction, and there was tenderness to
palpation over the long head of the biceps and over the acromion area. Muscle strength was
5/5. Dr. Meloy’s impression was chronic right shoulder pain of unknown etiology, status post
work-related injury with surgery in June 2008, and physical exam findings for some biceps
tendinitis, as well as subacromial bursitis. Dr. Meloy suggested injections, chiropractic
treatment, or another course of physical therapy, but plaintiff was not interested in any of
these modalities. Dr. Meloy told plaintiff he did not see any indication for plaintiff to be on
morphine three times daily and recommended he come off these medications. Dr. Meloy
noted that it is fairly typical for a 50% dose increase every year to maintain the same level of
pain. He further indicated that the medication was failing to provide pain relief if plaintiff’s pain
was still 7/10 after taking it, but plaintiff was adamant that he needed this medication to
function. Dr. Meloy referred him to an occupational medicine specialist for further evaluation
and treatment. Based on issues of depression related to pain, Dr. Meloy also wanted him to
be evaluated for entry into the chronic pain program. (Tr. at 320.)
On January 24, 2011, plaintiff underwent an evaluation with Dr. Christopher Westra
regarding the work-related injury. Dr. Westra noted that over the course of late 2008 until the
present plaintiff had been on escalating doses of narcotics beginning with Percocet,
proceeding to Duragesic, OxyContin, and more recently MS-Contin, prescribed by his primary
care physician, Dr. Bradshaw. Plaintiff complained of pain in his right shoulder, which had
not resolved or improved. He had physical therapy after the surgery and cortisone injections
into his right shoulder. He reported depressed mood and appeared uncertain regarding his
future goals. (Tr. at 331.) He reported doing no exercise or weight training with his right arm
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or shoulder. He complained of fatigue and weakness, ringing in his ears, dizziness, shortness
of breath, change in appetite and bowel habits, joint and muscle pain, memory problems,
numbness and tingling. He also reported problems with depression, anxiety, and difficulty
sleeping. (Tr. at 332.) On exam, his neck demonstrated relatively full range of motion. On
musculoskeletal exam, he exhibited adequate muscle bulk for a man his age and size. On
specific exam of his right shoulder, there was no gross atrophy or lack of muscle bulk in visual
comparison with the left. There was no atrophy or lack of muscle bulk in comparison of the
lower arms bilaterally. He was able to forward flex his arm to a full overhead reach and
abduct his arms to a full overhead reach. The movement of his right shoulder was smooth
and fluent. On testing of the rotator cuff muscles, there was some globally decreased
strength particularly with internal and external rotation. There was also some minor weakness
of the deltoid with strength testing. Plaintiff displayed some accentuated pain behavior with
grimacing, and he gave a token exertional effort. Dr. Westra assessed right shoulder pain
following acromioplasty. (Tr. at 333.) Plaintiff had been given a 5% disability rating for
workers’ compensation purposes and continued to have pain without significant anatomical
derangement. Psychosocial issues were present and significant in his delayed recovery. Dr.
Westra suggested a workers’ rehabilitation program, including physical and occupational
therapy with weight training. Plaintiff expressed reluctance at this. Dr. Westra also expressed
that plaintiff was on too much narcotic medication and that this level was not going to be
helpful over the long-term. (Tr. at 334.)
On March 4, 2011, plaintiff returned to Dr. Bradshaw. Plaintiff had called at the end
of January reporting depression, and Dr. Bradshaw started him on Fluoxetine, an anti-

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depressant.1 At the March 4 visit, plaintiff reported some improvement. He also reported that
his pain was a little better; some days, he was taking two MS-Contin rather than three. Dr.
Bradshaw increased the Fluoxetine dose to see if they could obtain more improvement. Dr.
Bradshaw also provided a refill of MS-Contin. (Tr. at 343, 350, 372.)
On August 19, 2011, plaintiff followed up with Dr. Bradshaw for discussion of his
medications and requesting a refill of Morphine. Plaintiff reported feeling pretty good. He also
discussed his disability application. Dr. Bradshaw believed plaintiff should go through the
orthopedic surgeon to evaluate disability based on the shoulder; Dr. Bradshaw did not feel
comfortable making that call. Dr. Bradshaw wrote a new prescription for MS-Contin 60 mg
three times per day and refilled Fluoxetine. (Tr. at 360, 371.)
On October 2, 2012, plaintiff saw Dr. Bradshaw for medication check. He had been
taking MS-Contin 60 mg three times per day. He had also been taking Tylenol but was not
sure it was working. He had been on Fluoxetine but was not taking it regularly. Plaintiff also
indicated that he had been to a pain clinic. They wanted to do a full functional assessment
on him but wanted him off his pain medication. He asked what he could do when off his pain
medications, and they did not say so he never completed the assessment. Plaintiff and Dr.
Bradshaw discussed pain medications, with Dr. Bradshaw indicating a high dose could
actually result in more pain. Dr. Bradshaw suspected the mood issues were related to pain,
but if plaintiff was going to use Fluoxetine he had to take it regularly to get the benefit. Dr.
Bradshaw refilled MS-Contine and Fluoxetine, and for break-through pain provided

1

http://www.drugs.com/fluoxetine.html.
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Naprosyn.2 (Tr. at 392.) In March 2013, plaintiff tested positive for marijuana, and Dr.
Bradshaw declined to refill pain medications any longer. (Tr. at 393.)
B.

Procedural History
1.

Plaintiff’s Application and Supporting Materials

In May 2011, plaintiff applied for social security benefits, alleging a disability onset date
of March 20, 2009. (Tr. at 162.) In his disability report, plaintiff indicated that he could not
work due to chronic right shoulder and arm pain, and depression. (Tr. at 187.) He indicated
that he had been laid off in March 2009 because he could no longer do the work. He
attempted a return to work in December 2010 but was unable to do it because of chronic pain
and medication side effects (fatigue, dizziness, memory issues), lasting only two days on the
new job. (Tr. at 188.) He reported past work (Tr. at 189) as an industrial maintenance
mechanic from August 1994 to July 2002, which required him to lift up to 100 pounds or more,
50 pounds frequently (Tr. at 200); as a machine operator/laser set up from April 2004 to
November 2004, which required him to lift up to 100 pounds or more, 25 pounds frequently
(Tr. at 203); as a maintenance mechanic/laborer from January 2005 to March 2009, which
required him to lift 100 pounds or more, 25 pounds frequently (Tr. at 199); and as a quality
assurance inspector in December 2010, the job he held for just two days (Tr. at 188, 196).
In a function report, plaintiff related constant pain in his right shoulder and arm.
Medications helped curb the pain a little but not totally. He reported that the medications
affected his mental capacity, causing sleepiness, confusion, visual impairment, and dizziness.
(Tr. at 207.) He indicated that he did chores around the house but with rest breaks; he
usually rested more than he worked. He wrote that he mostly slept in a recliner, and that

Naprosyn is a non-steroidal anti-inflammatory drug used to treat pain or inflammation.
http://www.drugs.com/naprosyn.html.
2

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personal care tasks hurt his shoulder. (Tr. at 208.) He prepared simple meals – sandwiches,
eggs, frozen dinners – once per day. He also did some light laundry, snow shoveling, and
light house cleaning. He received help with snow shoveling, lawn mowing, laundry, and
cooking. (Tr. at 209.) He was able to go out and drive a car, but his wife drove most of the
time. He preferred to have someone come with him because he became disoriented. His
wife did most of the shopping. (Tr. at 210.) He spent his time watching TV; he no longer
played sports, hunted, or swam, and rarely went out. (Tr. at 211.) He indicated that his
conditions affected his ability to lift, stand, reach, talk, see, remember, complete tasks,
concentrate, understand, follow instructions, and use his hands. He stated that he did not
want to lift anything, no matter how light, and his medications affected his understanding,
vision, memory, concentration, and ability to complete tasks. He indicated that he could walk
one mile before he had to stop and rest. He could pay attention for “a short while.” (Tr. at
212.) He followed spoken instructions “pretty well” but preferred to have things written down.
(Tr. at 212.) He got along with authority figures pretty well but did not handle stress well;
constant pain was nerve racking. He handled changes in routine pretty well. (Tr. at 213.) He
reported taking Morphine, which made him sleepy and confused, and Fluoxetine, which
caused constipation, nightmares, and loss of appetite. He concluded that his injury had
ruined his life. Once a physically active person, he now sat and watched TV. The medication
never took all the pain away, and extra physical tasks aggravated his condition. (Tr. at 214.)
In a physical activities addendum, plaintiff indicated that he mostly slept in a recliner,
as laying in bed hurt his shoulder. He indicated that in a day he could sit seven hours, and
stand and walk for two hours. (Tr. at 215.)
In a later disability report completed in September 2011, plaintiff indicated that his
shoulder was progressively getting worse. Any movement caused pain. His depression had
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also worsened. (Tr. at 218.) He indicated that he could care for himself but not without
difficulty. Reaching to towel himself after a shower was painful, as was reaching above his
head to put on a shirt. Because of increased depression, he moped around. He no longer
mowed the lawn, shoveled snow, or enjoyed sports. He did not cook as often, as it was
difficult to do even simple tasks such as chopping vegetables. (Tr. at 221.) He also reported
suffering from dry mouth, ringing in the ears, nightmares, anxiety, mild hallucinations, memory
loss, and loss of self-worth. (Tr. at 222.)
In a November 2011 function report, plaintiff complained of constant pain in his right
shoulder and arm. He also reported weakness in these areas. Any physical exertion
aggravated his pain. His medications helped a little but affected his mental capabilities. (Tr.
at 225.) He reported having no bed time but rather took naps day and night. Pain impacted
his personal care. (Tr. at 226.) He reported that his conditions affected all of the abilities
listed on the form – lifting, squatting, bending, standing, reaching, walking, sitting, kneeling,
talking, hearing, stair climbing, seeing, memory, completing tasks, concentration,
understanding, following instructions, using hands, and getting along with others. (Tr. at 230.)
In a March 2012 disability report, plaintiff again indicated that his right shoulder and
arm pain had worsened, and it seemed as if the pain medication was no longer working. His
depression had also worsened. (Tr. at 239.) He reported taking Fluoxetine for depression,
Morphine for chronic pain, and Tylenol for breakthrough pain. (Tr. at 241.) Because of
chronic pain, he reported doing less and less each day, particularly household chores. (Tr.
at 242.)
2.

Agency Review

On August 25, 2011, Alexander Stolarski, Ph.D. conducted a psychological evaluation
set up by the agency. (Tr. at 376.) Plaintiff described his injury and treatment, including his
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current prescription of Morphine Sulfate 60 mg three times per day. (Tr. at 376-77.) Dr.
Stolarski opined that plaintiff may be addicted to his Morphine medication, and that there was
evidence that this medication may have an impact on his cognition. Several times during the
interview, plaintiff said that his mind/memory was not what it should be. (Tr. at 377.)
Dr. Stolarski found plaintiff cooperative, but there was not enough information for him
to determine if plaintiff was malingering. Dr. Stolarski did have the clinical impression that
plaintiff seemed quite comfortable not working, simply sitting back in his recliner and watching
TV most of the day. Plaintiff described his mood as “lousy,” but Dr. Stolarski found his affect
appropriate and his mood normal. He smiled, was bright and cheery during the interview, and
Dr. Stolarski saw no evidence of anxiety or depression. Plaintiff endorsed sleep disturbance,
low energy, and suicidal thoughts with no plan. He also reported a sense of worthlessness
and guilt because he was not being productive. Evaluation of thought content revealed no
evidence of delusions, hallucinations, or paranoid ideation. Remote and recent memory were
within normal limits, but immediate memory evidenced a mild to moderate impairment.
Regarding concentration, he was able to spell the word “world” backward and forward. He
was able to follow a three-step command and had no problem following conversation. Deficits
were evidenced in abstract thinking, but Dr. Stolarski indicated that this was not uncommon
with those of plaintiff’s educational level. Insight was reasonable, and judgment capabilities
maintained. (Tr. at 378.)
Regarding activities of daily living, plaintiff indicated that he awoke at 6:00 a.m., helped
his wife get ready for work, then went back to bed or to his chair to sleep until 8:00 a.m. He
then had some breakfast, washed, shaved, and did some chores around the house. He
stated that most of the day he “lives in his chair.” (Tr. at 379.) Dr. Stolarski’s impression was

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that plaintiff was not motivated and seemed content with his way of life. His social functioning
was basically limited to immediate family. (Tr. at 379.)
Regarding concentration, plaintiff could read magazines or the newspaper but did not
read books. He reported that if he puts his mind to it, he can get things done, and if he starts
something he can finish it. Dr. Stolarski saw no evidence of problems with concentration and
pace. Plaintiff was able to dress, wash, and tend to his personal care, and he did laundry for
himself and the family. (Tr. at 379.) Regarding his work history, Dr. Stolarski opined that
plaintiff had never been very invested in his work and seemed to adapt well to a status of
unemployment and being non-productive. He never had any accommodations in his work
process. (Tr. at 379.)
Dr. Stolaski diagnosed no mental impairment, setting a GAF score of 75.3 He listed
plaintiff’s prognosis as guarded, noting that a pain clinic wanted to work with plaintiff but
wanted him to taper off the morphine. Plaintiff refused, claiming he would not be able to lift
weights to strengthen his shoulder. When he sought a second opinion post-surgery, the
doctor would not perform any further surgery or prescribe medication. Plaintiff returned to his
family physician, Dr. Bradshaw, who continued to renew morphine. Dr. Stolarski concluded
that plaintiff was able to understand, remember, and carry out simple instructions; respond
appropriately to supervisors and co-workers; maintain concentration, attention, and work
pace; withstand routine work stressors; and adapt to change. (Tr. at 380.)

“GAF” stands for “Global Assessment of Functioning.” Set up on a 0-100 scale,
scores of 91-100 are indicative of a person with no symptoms, while a score of 1-10 reflects
a person who presents a persistent danger of hurting himself or others. Scores of 81-90
reflect “absent or minimal” symptoms, 71-80 “transient” symptoms, and 61-70 “mild”
symptoms. American Psychiatric Association, Diagnostic and Statistical Manual of Mental
Disorders (“DSM-IV”) 32-34 (4th ed. 2000). The Fifth Edition of the DSM, published in 2013,
abandoned the GAF scale. See Williams v. Colvin, 757 F.3d 610, 613 (7th Cir. 2014).
3

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The agency also arranged for several consultants to review the record. On August 29,
2011, based on review of the medical evidence and Dr. Stolarski’s report, Susan Donahoo,
Psy.D., found no evidence of a severe mental impairment. (Tr. at 76.) On August 30, 2011,
Janis Byrd, M.D., concluded that plaintiff could perform medium work, with occasional
overhead reaching with the right arm. (Tr. at 77-78.) On December 12, 2011, Kyla King,
Psy.D., reviewed the evidence and affirmed the August 29, 2011 mental assessment as
written. (Tr. at 386.) On December 13, 2011, Syd Foster, D.O., reviewed the evidence and
affirmed the August 30, 2011 physical assessment as written. (Tr. at 387.)
The SSA denied plaintiff’s application initially (Tr. at 70, 85) and on reconsideration (Tr.
at 80, 94.) Plaintiff then requested a hearing before an ALJ. (Tr. at 103.)
3.

Hearing

On June 6, 2013, plaintiff appeared with counsel for his hearing before the ALJ. The
ALJ also summoned a vocational expert (“VE”). (Tr. at 25.)
a.

Plaintiff’s Testimony

Plaintiff testified that he was 57 years old, 5'10" tall, and 208 pounds. (Tr. at 30-31.)
He indicated that he had a driver’s license and drove on average twice per week. (Tr. at 32.)
He had a 12th grade education with no further vocational training. He indicated that since the
alleged onset date of March 20, 2009, he worked for two days before quitting due to his
condition. (Tr. at 33.) He identified past work as an industrial maintenance mechanic from
1994-2002, which required lifting up to 40 pounds. (Tr. at 33-34.) After that, he worked as
a machine operator/laser setup operator for about a year, which required lifting up to 20
pounds.4 (Tr. at 34-35.) From 2005 to 2009, he worked as a maintenance mechanic and

On questioning from counsel, plaintiff indicated he did this job for about five months
from June 2004 to November 2004. (Tr. at 49.)
4

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laborer, which required lifting up to 70 pounds. (Tr. at 35-36.) For a brief time in 2010 (two
days), he worked as a quality assurance inspector, which involved lifting up to 25 pounds;
plaintiff testified that he could not do this job because of the lifting and his pain. (Tr. at 36.)
The ALJ asked plaintiff to identify the primary reason he could not work, and plaintiff
responded pain in his right shoulder, for which he took Morphine Sulfate. He indicated that
he had been on opiates since his surgery about seven years ago. He reported side effects
of nausea, dizziness, sleepiness, loss of mental focus, and constipation. (Tr. at 37.) Plaintiff
indicated that he raised the issue with his doctor and asked for a stronger medication, but the
doctor declined to provide one. (Tr. at 38.) In March 2013, plaintiff tested positive for
marijuana, and his doctor refused to provide any further medications based on the violation
of their contract. (Tr. at 39.)
Plaintiff testified that his shoulder pain was constant, aggravated at times. The pain
was primarily in his shoulder but at times ran into his biceps. (Tr. at 40.) Activities such as
shoveling snow, mowing the lawn, and picking up items in the house aggravated the pain.
To relieve the pain, he had tried many things, including marijuana and over-the-counter
medications. He completed physical therapy after the surgery, which helped at first, but then
the pain got worse. (Tr. at 41.) He testified that his condition improved for awhile after his
2008 surgery, but as time went on the pain returned, gradually worsening. (Tr. at 42.)
The ALJ turned to plaintiff’s depression complaints, noting that the examining
psychologist gave plaintiff a GAF of 75, indicative of no severe mental impairment. Plaintiff
testified that he felt like he had a severe depression problem, and that he did not consider the
psychologist very professional. Plaintiff indicated that he did not have a treating psychiatrist
or psychologist; Dr. Bradshaw provided medication for depression, but it did not help. Dr.
Bradshaw had not tried another anti-depressant medication, and plaintiff did not “consider him
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to be much of a doctor either.” (Tr. at 42.) Plaintiff asserted deterioration in memory as a
result of depression.

His depression also possibly affected his ability to focus and

concentrate. He testified that he did not go out much but got along okay with his family. (Tr.
at 43-44.)
Plaintiff testified that he slept poorly. He mostly slept in a recliner because laying in
bed for more than two hours made his shoulder worse. (Tr. at 44.) He slept about five hours
total and felt tired the next day, having to take naps or falling asleep in his chair without
knowing it. (Tr. at 44-45.)
Plaintiff stated that he could manage self care fairly well. (Tr. at 45.) He did some
household chores, but reported that pushing a vacuum cleaner aggravated his shoulder. (Tr.
at 45-46.) He did laundry but pushed the basket down the stairs. He also took out the trash.
He did some snow shoveling and grass mowing but asked for help from his children.5 His wife
usually did the shopping. (Tr. at 46.) He denied going fishing or hunting since his surgery.
(Tr. at 46-47.) He also denied exercise (aside from activities around the house) or any
hobbies. (Tr. at 47-48.) For fun, he watched TV. (Tr. at 48.)
b.

VE’s Testimony

The VE first classified the skill and exertion levels of plaintiff’s past jobs: industrial
maintenance mechanic (medium, skilled work as performed; heavy work, SVP 7, generally)6;

On questioning from counsel, plaintiff testified that he spent about ½ hour per day on
chores. He spread them out over the week, e.g., dishes one day, laundry the next, mowing
lawn the day after that. (Tr. at 51.)
5

SVP stands for “Specific Vocational Preparation” and represents the amount of time
required by a typical worker to learn the techniques, acquire the information, and develop the
facility needed for average performance in a specific job-worker situation.
https://www.onetonline.org/help/online/svp. Unskilled work corresponds to an SVP of 1-2,
semi-skilled work corresponds to an SVP of 3-4, and skilled work corresponds to an SVP of
5-9 in the Dictionary of Occupation Titles (“DOT”). SSR 00-04p, 2000 SSR LEXIS 8, at *8.
6

-17-

machine operator/laser setup operator (medium, semi-skilled work as performed; light work,
SVP 4, generally);7 and maintenance mechanic laborer (heavy, skilled work as performed;
heavy, SVP 7, generally). (Tr. at 55-57.) The ALJ then asked a hypothetical question
assuming a person of plaintiff’s age, education, and work experience, capable of medium
work with occasional reaching overhead with the right upper extremity. The VE testified that
such a person could do plaintiff’s past work as a laser setup machine operator. Changing the
exertional level to light, the answer was the same. (Tr. at 57.) The VE also identified other
jobs the person could do at the medium level, including metal plastics worker, packaging
machine operator, and carpenter. (Tr. at 58.) If the person would be off task one to two
hours per day due to pain and fatigue, all work would be precluded. (Tr. at 59.)8
4.

ALJ’s Decision

On July 10, 2013, the ALJ issued an unfavorable decision. (Tr. at 9.) Following the
familiar five-step sequential evaluation process,9 the ALJ determined at step one that plaintiff
had not engaged in substantial gainful activity since March 20, 2009, the alleged onset date.

On cross-examination, the VE admitted that the DOT code he used for this position
was not a great fit, as the DOT was out of date. (Tr. at 60-61.) On further questioning by the
ALJ, the VE testified that in his experience this position was generally performed at the light
level. (Tr. at 65-66.)
7

In a closing statement, plaintiff’s counsel asked to amend the onset date to the day
before plaintiff’s 55th birthday. (Tr. at 64-65.) With a light RFC and a finding that he could not
perform his past work, plaintiff would be disabled as of his 55th birthday under SSA
regulations. See 20 C.F.R. pt. 404, subpt. P, app. 2, § 202.06; see also 20 C.F.R. §
404.1568(d).
8

Under this process, the ALJ determines (1) whether the claimant is currently working,
i.e., engaging in “substantial gainful activity”; (2) if not, whether he suffers from a severe
impairment or impairments; (3) if so, whether any of those impairments are conclusively
disabling under the agency’s Listings; (4) if not, whether the claimant retains the RFC to
perform his past relevant work; and (5) if not, whether he can make the adjustment to other
work in the economy. See 20 C.F.R. § 404.1520(a)(4).
9

-18-

While plaintiff did work after that date, it did not rise to the level of substantial gainful activity.
(Tr. at 14.)
At step two, the ALJ determined that plaintiff suffered from the severe impairment of
right shoulder disorder status post acromioplasty and distal clavicle excision with residual
pain. The ALJ found plaintiff’s obesity non-severe. The ALJ considered the potential impact
of obesity in causing or contributing to co-existing impairments but found no evidence of any
specific or quantifiable impact on pulmonary, musculoskeletal, endocrine, cardiac, or any
other system’s functioning, as objective examination was unremarkable. (Tr. at 14.) The ALJ
also found plaintiff’s depression non-severe, noting that plaintiff never saw a mental health
professional prior to the consultative psychological exam in August 2011. (Tr. at 14-15.) At
that exam, he appeared cooperative with appropriate affect, as well as normal speech,
judgment, and recent and remote memory, good concentration, and no evidence of delusions,
hallucinations, or paranoia. Dr. Stolarski rated plaintiff’s global assessment of functioning at
75, indicating no more than slight impairment. (Tr. at 15.)
The ALJ also considered the four broad functional areas set out in the regulations for
evaluating mental disorders.10 The ALJ found no limitation in activities of daily living, as
plaintiff reported being capable of managing his personal care, washing laundry and dishes,
watching television and movies, mowing the lawn, managing money, shopping, preparing
meals, shoveling snow, and driving. The ALJ found mild limitation of social functioning, as

These four broad areas are: (1) activities of daily living; (2) social functioning; (3)
concentration, persistence, and pace; and (4) episodes of decompensation. 20 C.F.R. §
404.1520a(c). The ALJ rates the degree of limitation in the first three areas using a five-point
scale: none, mild, moderate, marked, and extreme; and the degree of limitation in the fourth
area using a four-point scale: none, one or two, three, and four or more. Id. If the ALJ rates
the degree of limitation in the first three areas as “none” or “mild” and “none” in the fourth
area, he may generally conclude that the impairment is not severe. Id. § 404.1520a(d)(1).
10

-19-

plaintiff indicated that he socially isolates but admitted that he has no problem getting along
with family, friends, neighbors, or authority figures; he also related going to picnics with
friends, and he appeared to have no difficulties interacting at the hearing. The ALJ also found
mild limitations in concentration, persistence, and pace. Plaintiff endorsed memory problems
and exhibited mild to moderate deficits in immediate memory during examination.
Nevertheless, he was able to engage in multiple activities that require a significant amount
of concentration, persistence, and pace, such as preparing meals, driving, shopping, handling
money, watching movies, and performing house and yard work. He also conceded that he
can finish what he starts and follow both written and verbal instructions. Additionally, he
exhibited no problems with concentration or pace during the consultative exam and appeared
to have no difficulties following along at the hearing. Finally, the ALJ found no episodes of
decompensation. Because plaintiff’s mental impairment caused no more than mild limitation,
the ALJ deemed it non-severe. (Tr. at 15.)
The ALJ found that Dr. Stolarski’s opinion supported this finding. Dr. Stolarski found
that plaintiff remained capable of understanding, remembering, and carrying out simple
instructions, responding appropriately to supervisors and coworkers, adapting to change, and
withstanding routine work stressors. (Tr. at 15.) The ALJ found this opinion consistent with
plaintiff never seeking treatment from a mental health specialist, his admitted high level of
daily functioning, and the mostly unremarkable mental status evaluation. The ALJ thus gave
Dr. Stolarski’s opinion significant weight. (Tr. at 16.) The ALJ also gave great weight to the
opinions of the state agency psychological consultants, Drs. King and Donahoo, who found
plaintiff’s depression non-severe. Their opinions were consistent with plaintiff’s GAF of 75,
his high level of daily functioning, the rather unremarkable objective mental evaluation
findings, and his not seeking treatment from a mental health specialist. (Tr. at 16.)
-20-

At step three, the ALJ found that plaintiff’s shoulder impairment did not meet a Listing.
The ALJ specifically considered Listing 1.02, but found no evidence of inability to perform fine
and gross movements effectively as defined in § 1.00B2c. (Tr. at 16.)
The ALJ next determined that plaintiff retained the RFC to perform medium work,
except with no more than occasional reaching overhead with the right upper extremity. In
making this finding, the ALJ considered the medical opinion evidence and plaintiff’s alleged
symptoms. (Tr. at 16.)
The ALJ first summarized plaintiff’s claims, noting that plaintiff alleged disability due
to chronic right shoulder and arm pain, as well as depression. Plaintiff asserted that these
impairments limited his ability to lift, squat, bend, stand, reach, use his hands, walk, sit, kneel,
talk, hear, climb stairs, see, remember, complete tasks, concentrate, understand, follow
instructions, and get along with others. At the hearing, plaintiff testified that he suffers from
chronic right shoulder pain requiring him to use Morphine for the past several years, and that
he continued to be depressed. (Tr. at 17.)
The ALJ noted that plaintiff injured his right shoulder at work in August 2006. Treating
providers diagnosed chronic impingement of the right shoulder and degenerative joint disease
of the acromioclavicular joint. After conservative treatment failed, plaintiff underwent surgery
on his shoulder in June 2008. Following the surgery, plaintiff received physical therapy but
continued to complain of ongoing pain.

On exam, he displayed tenderness, positive

impingement sign at times, some intermittent decreased strength, and occasional mild
reduced range of motion. Diagnostic imaging showed a benign lesion, degenerative changes
to the acromioclavicular joint with mild impingement, and some degenerative cysts. His
primary care doctor prescribed an escalating level of narcotic pain medication since 2008,
including Morphine three times per day. (Tr. at 17.)
-21-

Because of plaintiff’s right shoulder impairment, as well as considering the reported
side effects of medication, and plaintiff’s non-severe impairments, the ALJ found plaintiff
limited to medium work with no more than occasional overheard reaching with the right upper
extremity. (Tr. at 17.) However, “after careful consideration of the evidence, [the ALJ found]
that although [plaintiff’s] medically determinable impairments could reasonably be expected
to cause some of [sic] symptoms of the types alleged, his statements concerning the intensity,
persistence and limiting effects of these symptoms are not entirely credible for the reasons
explained in this decision.” (Tr. at 17.)
In support, the ALJ first noted that the objective medical evidence failed to fully
substantiate the allegations of disabling symptoms. Plaintiff had a well-healed incision, full
range of motion, intact neurovascular findings, negative impingement testing, and no
erythema, effusion, or edema 22 weeks after his June 2008 surgery. Similarly, he evidenced
intact motor and sensory findings with only mildly reduced range of motion and no weakness,
swelling, crepitus, or instability during a May 2009 exam. Additionally, he displayed intact
sensation, full strength, and normal range of motion, with no radicular symptoms or muscle
weakness during an exam in December 2010. (Tr. at 17.) Likewise, he exhibited adequate
muscle bulk, negative testing, and no joint deformity or atrophy during a January 2011 exam.
He reported feeling “pretty good” in August 2011 and sought minimal treatment other than
medication maintenance after that. (Tr. at 18.)
In addition to the rather unremarkable objective examination findings, the ALJ found
that plaintiff’s non-compliance with and lack of motivation to try treatment undermined his
allegations of disabling symptoms. The ALJ noted that plaintiff consistently refused to lower
his narcotic pain medication, despite multiple providers suggesting he do so and being

-22-

informed that too much pain medication can actually increase his pain level.11 He also
declined further physical therapy and chose not to proceed with biceps injections. The ALJ
concluded that this refusal suggested that plaintiff’s pain was more manageable than he
alleged, as one would expect him to try any or all of these treatment modalities if he really
were in constant severe pain. Plaintiff had also missed doses, taken too much medication,
and smoked marijuana, which ultimately led to him no longer receiving prescribed narcotic
pain medication as of March 2013. (Tr. at 18.)
Further, the ALJ found that plaintiff’s receipt of unemployment compensation during
the same period he alleged disability undermined his credibility, as he asserted both that he
was able and available for work to collect unemployment and that he could not perform work
at even the substantial gainful activity level for his disability allegations, “inherently
inconsistent claims.” (Tr. at 18.) Similarly, plaintiff’s allegations that his impairments affected
his abilities to squat, bend, stand, use his hands, walk, sit, kneel, talk, hear, climb stairs, see,
complete tasks, understand, and follow instructions were not consistent with examination
findings or his admitted activities of daily living, which suggested a high level of daily
functioning. (Tr. at 18.)
As for the opinion evidence, the ALJ gave great weight to the opinions of the state
agency medical consultants, Drs. Foster and Bird, who found plaintiff capable of medium work
with no more than occasional overhead reaching with the right arm. The ALJ found these
opinions consistent with objective findings during multiple exams, plaintiff’s daily activities, and
plaintiff’s certification that he was able to work to collect unemployment. The ALJ gave little

The ALJ noted that addiction to pain medication was suspected during the
consultative psychological exam, which suggested a secondary gain from plaintiff’s ongoing
severe pain allegations. (Tr. at 18 n.1.)
11

-23-

weight to the fact that plaintiff received a 5% permanent partial disability rating due to his right
shoulder injury, as the SSA does not acknowledge partial disability under its rules. (Tr. at 18.)
At step four, the ALJ found that plaintiff remained able to perform his past work as a
machine operator. The ALJ found that plaintiff performed this work within the past 15 years,
did it long enough to learn it, and earned a sufficient amount at it. The VE testified that a
person with plaintiff’s RFC could perform this job, both as plaintiff actually performed it (at the
medium level) and as it is generally done (at the light level). Based on the VE’s testimony that
a person like plaintiff could also work as a carpenter, packaging machine operator, and metal
plastics worker, the ALJ alternatively denied the claim at step five. (Tr. at 19.)
5.

Appeals Council Review

Plaintiff requested review by the Appeals Council, submitting additional medical
evidence in support of the request. (Tr. at 245, 397-403.) On June 25, 2013, plaintiff saw Dr.
Chandur Piryani at Spine Pain Diagnostics Associates regarding right-sided neck and right
shoulder and arm pain. Plaintiff had been taking Morphine Sulfate but after the positive drug
test his doctor stopped prescribing it, and he had been off medications since then. His pain
had been affecting his daily activities of life. (Tr. at 400.) On exam, he had tenderness in the
mid to lower cervical area on the right side and in the right anterior shoulder. He had limited
range of motion of the right shoulder, with pain. (Tr. at 402.) He also had some pain going
down the right arm and diminished reflexes in the biceps and brachioradials. Dr. Piryani
ordered a cervical MRI and an EMG of the right upper extremity and prescribed a trial of

-24-

Gabapentin,12 as well as Zanaflex,13 Lidoderm cream,14 and Elavil.15 Plaintiff was advised to
maintain normal activities, advised against bed rest, and told to follow up after imaging studies
for further recommendations. (Tr. at 403.)
A July 25, 2013, cervical MRI revealed relatively mild disc bulging at C3-4, C4-5, and
C5-6 with mild impingement on the spinal cord. The spinal canal was relatively narrow at all
three of those levels, contributing significantly to the fact that such mild bulging impinged the
cord. The MRI showed no evidence of herniated disc or significant active bone lesion. (Tr.
at 397.)
On August 8, 2013, plaintiff returned to Dr. Piryani, reporting that the Gabapentin
helped but the Lidoderm did not. Dr. Piryani reviewed the MRI, summarized above, as well
as the EMG, which showed chronic right cervical radiculopathy at the C5-6 level and mild right
median neuropathy at the carpal tunnel segment. (Tr. at 398.) Dr. Piryani assessed
persistent right shoulder pain after work-related injury requiring acromioplasty, with some pain
in the right side of the neck, right trapezius, and right upper arm with MRI evidence of
degenerative changes and disc bulging and EMG evidence of right C5-6 radiculopathy
probably neck related.

He planned a cervical facet joint nerve block and continued

Gabapentin, Zanaflex, and Elavil. (Tr. at 399.)
In his brief supporting Appeal Council review, plaintiff argued that the evidence did not
support the ALJ’s medium RFC, and that the ALJ’s credibility determination was not

12

Gabapentin is used to treat nerve pain. http://www.drugs.com/gabapentin.html.

13

Zanaflex is a short-acting muscle relaxer. http://www.drugs.com/zanaflex.html.

Lidoderm cream is a
http://www.drugs.com/lidoderm.htm.
14

15

local

anesthetic

used

to

Elavil is an anti-depressant. http://www.drugs.com/elavil.htm.
-25-

relieve

pain.

supported by substantial evidence. He further argued that the newly submitted evidence,
including the cervical MRI documenting disc bulging at C3-4, C4-5, and C5-6 with
impingement on the spinal cord, and the EMG showing cervical radiculopathy, suggested that
he could not perform the lifting required of medium work. (Tr. at 245-46.)
On August 22, 2014, the Appeals Council denied plaintiff’s request for review.
Specifically, the Council stated:
In looking at your case, we considered the reasons you disagree with the
decision and the additional evidence listed on the enclosed Order of Appeals
Council. We considered whether the Administrative Law Judge’s action,
findings, or conclusion is contrary to the weight of the evidence.
We found that this information does not provide a basis for changing the
Administrative Law Judge’s decision.
(Tr. at 1-2.)
II. STANDARD OF REVIEW
Ordinarily, when the Appeals Council denies review, the court reviews the ALJ’s
decision as the final decision of the Commissioner. See, e.g., Minnick v. Colvin, 775 F.3d
929, 935 (7th Cir. 2015). In limited circumstances, however, the court may review the
Council’s decision to deny review. By regulation, the Council is supposed to review a case
if the claimant submits “new and material evidence” that, in addition to the evidence already
considered by the ALJ, makes the ALJ’s decision contrary to the weight of the evidence in the
record. Getch v. Astrue, 539 F.3d 473, 483 (7th Cir. 2008) (citing 20 C.F.R. 404.970)b)). The
court evaluates de novo whether the Council made an error of law in applying the regulation;
absent legal error, however, the Council’s discretionary decision whether to review is
unreviewable. Id.
The court reviews the ALJ’s decision to determine whether it is supported by
“substantial evidence” and free of harmful legal error. E.g., Hopgood v. Astrue, 578 F.3d 696,
-26-

698 (7th Cir. 2009). Substantial evidence means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion. Minnick, 775 F.3d at 935. Under
this deferential standard, the court may not re-weigh the evidence or substitute its judgment
for the ALJ’s; if reasonable people can differ over whether the claimant is disabled, the court
must uphold the decision under review. Shideler v. Astrue, 688 F.3d 306, 310 (7th Cir. 2012).
In rendering his decision, the ALJ must build a logical bridge from the evidence to his
conclusion, but he need not provide a complete written evaluation of every piece of evidence
and testimony in the record. Id.
III. DISCUSSION
As indicated, in this court plaintiff argues that (A) the ALJ failed to properly evaluate
his credibility; (B) the ALJ’s RFC determination lacks substantial evidentiary support; and (C)
the Appeals Council erred in failing to grant review based on the additional evidence he
submitted. I address each argument in turn.
A.

Credibility
In evaluating a claimant’s credibility, the ALJ first determines whether the claimant

suffers from medically determinable impairments that could reasonably be expected to
produce the pain or other symptoms he alleged. If not, the alleged symptoms cannot be
found to affect his ability to work. If so, the ALJ must then evaluate the intensity, persistence,
and limiting effects of the symptoms to determine the extent to which they limit the claimant’s
ability to work. SSR 96-7p, 1996 SSR LEXIS 4, at *5-6. At this step, the ALJ may not
discredit the claimant’s testimony about his pain and limitations solely because there is no
objective medical evidence supporting it. E.g., Villano v. Astrue, 556 F.3d 558, 562 (7th Cir.
2009). Rather, once the claimant produces medical evidence of an underlying impairment,
the ALJ must evaluate the claimant’s statements based on the entire record, SSR 96-7p,
-27-

1996 SSR LEXIS 4, at *6, providing specific reasons for the credibility determination,
supported by the evidence in the case record. Id. at *12. So long as the ALJ gives specific
reasons supported by the record, the reviewing court will not overturn his credibility
determination unless it is “patently wrong.” Curvin v. Colvin, 778 F.3d 645, 651 (7th Cir. 2015).
In the present case, the ALJ found that plaintiff’s medically determinable impairments
could reasonably be expected to cause some of the symptoms alleged, but that plaintiff’s
“statements concerning the intensity, persistence and limiting effects of these symptoms are
not entirely credible for the reasons explained in this decision.”16 (Tr. at 17.) In support, the
ALJ found that (1) the objective medical evidence failed to fully substantiate plaintiff’s
allegations of disabling symptoms; (2) plaintiff’s non-compliance with and lack of motivation
to try treatment undermined his allegations of disabling symptoms; (3) plaintiff’s receipt of
unemployment compensation, which required him to certify that he was able and available
for work, was inconsistent with his application for disability benefits; and (4) plaintiff’s
allegation that his impairments affected virtually all of his abilities conflicted with examination
findings and his admitted activities of daily living. (Tr. at 18.) Plaintiff attacks each of these
findings.
1.

Objective Medical Evidence

Plaintiff first accuses the ALJ of cherry picking normal exam findings from the record,
leaving out the abnormal findings. See, e.g., Bates v. Colvin, 736 F.3d 1093, 1099 (7th Cir.
2013) (stating that the ALJ cannot rely only on evidence supporting his decision). Plaintiff

Plaintiff faults the ALJ for using this boilerplate phrase. See, e.g., Bjornson v. Astrue,
671 F.3d 640, 645 (“The statement by a trier of fact that a witness’s testimony is ‘not entirely
credible’ yields no clue to what weight the trier of fact gave the testimony.”) (internal quote
marks omitted). However, use of such boilerplate may be harmless where, as here, the ALJ
goes on to provide specific reasons for his finding. See, e.g., Filus v. Astrue, 694 F.3d 863,
868 (7th Cir. 2012).
16

-28-

points to post-surgical records documenting positive impingement sign, pain in the biceps
tendon, loss of motion and weakness, tenderness in the AC joint, limited range of motion,
tenderness to palpation, and decreased strength. (Pl.’s Br. [R. 10] at 11-12.) However, the
ALJ is not required to mention every piece of evidence in the record and is prohibited only
from ignoring an entire line of evidence supporting disability. See, e.g., Jones v. Astrue, 623
F.3d 1155, 1162 (7th Cir. 2010). Moreover, the ALJ did discuss much of this evidence, noting
that after conservative treatment failed, plaintiff underwent surgery; that plaintiff continued to
complain of pain after the surgery and physical therapy; and that on examination he displayed
tenderness to palpation, positive impingement sign at times, some intermittent decreased
strength, and occasional mildly reduced range of motion. (Tr. at 17.) The ALJ also discussed
the diagnostic imaging showing degenerative changes to the acromioclavicular joint with mild
impingement. (Tr. at 17.) Finally, the ALJ noted that plaintiff’s primary care doctor treated
plaintiff’s reported pain with an escalating level of narcotic pain medication.17 (Tr. at 17.)
In finding that the record failed to fully substantiate plaintiff’s claims of disabling
symptoms, the ALJ cited evidence from the longitudinal record undercutting plaintiff’s claims.
In December 2008, 22 weeks after his surgery, plaintiff displayed a well-healed incision, full
range of motion, and no edema, erythema, or effusion. (Tr. at 17, 252.) During a May 2009
consult with Dr. Bentson, plaintiff showed mildly reduced range of motion and no swelling,
crepitation, or instability. (Tr. at 17, 312-13.) During his December 2010 evaluation with Dr.

In reply, plaintiff acknowledges that the ALJ cited this evidence earlier in his decision
but argues that the ALJ relied only on cherry-picked evidence in support of his credibility
determination. However, the court reads the ALJ’s decision as a whole to ascertain whether
he considered the relevant evidence. See, e.g., Curvin, 778 F.3d at 650. Here, the ALJ cited
the evidence discussed in the text immediately prior to his conclusion that plaintiff’s right
shoulder impairment limited his ability to work and could cause some of the symptoms
alleged. (Tr. at 17.)
17

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Meloy, plaintiff displayed full range of motion and normal muscle strength. (Tr. at 17, 319-20.)
During his January 2011 exam with Dr. Westra, he showed no atrophy or lack of muscle bulk,
full overhead reach, negative testing, and minor weakness on strength testing. (Tr. at 18,
333.) Finally, in August 2011, plaintiff told Dr. Bradshaw he felt “pretty good” and received
minimal treatment after that other than medication maintenance. (Tr. at 18, 360.) While a
claimant’s testimony may not be rejected based solely on lack of medical support, the ALJ
may find the objective medical evidence a “useful indicator” in reaching a reasonable
conclusion about the intensity and persistence of a claimant’s symptoms. 20 C.F.R. §
404.1529(c)(2); see also Simila v. Astrue, 573 F.3d 503, 517 (7th Cir. 2009). The ALJ did not
err by considering the objective medical evidence as one factor in his analysis here.
2.

Failure to Follow Treatment Recommendations

Plaintiff next faults the ALJ for relying on his declination of physical therapy and
injections in favor of continued heavy use of narcotic pain medication. Plaintiff contends that
the ALJ played doctor by questioning his choice of treatment modalities. As the ALJ noted,
however, several different physicians questioned plaintiff’s use of narcotics and his refusal
to consider other options. (Tr. at 320, 334, 380.) The ALJ did not reach this conclusion on
his own.
Plaintiff notes that his primary doctor prescribed the narcotics; the alternative treatment
suggestions came from one-time evaluators rather than treating physicians. But this does not
mean that the ALJ was required to ignore the opinions of the non-treating physicians. Plaintiff
also notes the ALJ’s citation of 20 C.F.R. § 404.1530(a), which provides that a claimant must
follow treatment prescribed by his treating physician if this treatment would restore the
claimant’s ability to work.

However, the ALJ did not deny the claim pursuant to this

-30-

regulation.18 Rather, he considered plaintiff’s refusal to try other options in evaluating his
credibility. See, e.g., Thao v. Astrue, No. 08-C-33, 2008 U.S. Dist. LEXIS 58775, at *22-24
(E.D. Wis. July 24, 2008) (distinguishing between violation of the non-compliance regulation
and consideration of medical evidence in evaluating credibility). The ALJ explained that
plaintiff’s refusal to try further therapy or proceed with injections suggested that his pain was
more manageable than he alleged; the ALJ expected that plaintiff would try these other
options if his pain were truly as severe and intractable as he claimed, despite high doses of
narcotics. The ALJ also cited the psychological consultant’s opinion that plaintiff had become
addicted to pain medication, which suggested a secondary gain from his ongoing severe pain
allegations. Finally, the ALJ noted that plaintiff failed to comply with the medication regimen
prescribed by treating physician Dr. Bradshaw, missing doses, taking too much, and smoking
marijuana, which ultimately lead to Dr. Bradshaw no longer prescribing narcotics. (Tr. at 18.)
3.

Receipt of Unemployment

Plaintiff also faults the ALJ for deeming his receipt of unemployment benefits
“inherently inconsistent” with his disability application. Plaintiff cites a memo from Chief
Administrative Law Judge Frank Cristaudo, which indicates that “it is SSA’s position that
individuals need not choose between applying for unemployment insurance and Social

The regulation applies when an individual who would otherwise be found disabled
fails without justifiable cause to follow treatment prescribed by a treating source that would
restore the individual’s ability to work. In that situation, the person cannot by virtue of such
“failure” be found to be under a disability. SSR 82-59, 1982 SSR LEXIS 25, at *1-2. Here,
the ALJ did not find plaintiff disabled but for his failure to try the other treatment modalities
suggested by the evaluators. Thus, plaintiff’s argument that there is no evidence that any
other form of treatment would allow his return to work misses the mark. Plaintiff also faults
the ALJ for not asking about his failure to try other treatment before using it as a negative
credibility factor. The ALJ did ask plaintiff about treatment modalities, specifically covering
plaintiff’s belief that physical therapy did not help. (Tr. at 41.) The ALJ also asked plaintiff
why he had “bounced around between a few physicians some of whom would not prescribe
any narcotic pain medication.” (Tr. at 38.)
18

-31-

Security disability benefits.” (R. 10 at 14.) Rather, “ALJs should look to the totality of the
circumstances in determining the significance of the application for unemployment benefits
and related efforts to obtain employment.” (R. 10 at 14.) The Seventh Circuit has essentially
taken the same position:
The case law of this circuit clearly permits the ALJ to give some consideration
to such activity on the part of the applicant when assessing his credibility.
Schmidt v. Barnhart, 395 F. 3d 737, 746 (7th Cir. 2005). But attributing a lack
of credibility to such action is a step that must be taken with significant care and
circumspection. All of the surrounding facts must be carefully considered.
Scrogham v. Colvin, 765 F.3d 685, 699 (7th Cir. 2014).
Plaintiff notes that in his case there is no legal contradiction between his receipt of both
benefits. Under the SSA’s Medical-Vocational Guidelines, a person of his age (55+) and work
experience limited to light work will be deemed disabled. It is possible, plaintiff contends, that
he was ready, willing, and able to work in a light position but simply could not find one.
Plaintiff also notes that he did obtain work in December 2010 but was unable to handle the
lifting and quit after just two days.
The ALJ did overstate things in finding the two applications “inherently inconsistent.”
As plaintiff explains, there is a way to reconcile them. However, I cannot conclude that this
alone requires reversal. As Chief Judge Griesbach recently stated in rejecting a similar
contention:
the argument misses the mark because what’s at issue is a layman’s credibility,
which is based on factual truths rather than ex post facto interpretations of
regulations. As the ALJ repeatedly pointed out, the issue is very simple: the
claimant certified to the unemployment agency, at a fixed date and time, that
he was able to work. The claimant, at that point, had absolutely no
understanding of the complex Social Security regulations that are being
discussed here, and no idea that because of his age and 20 C.F.R. §
404.1568(d)(4), there might be some way to square his statement to the
unemployment agency with a disability claim. He was simply saying he was
able to work, just as his own physician said he was able to work. It is a
concrete record of an objective, factual nature, that does not depend for its truth
-32-

or falsity on a future finding about Plaintiff’s RFC. These are matters of fact
within the record, and the ALJ is entitled to account for them.
Roovers v. Colvin, No. 14-C-370, 2015 U.S. Dist. LEXIS 8538, at *13 (E.D. Wis. Jan. 26,
2015).
In Roovers, Chief Judge Griesbach found that the claimant provided only a theoretical
reconciliation of the two claims. Plaintiff’s argument suffers from a similar flaw here. As the
Commissioner notes, plaintiff did not testify that he felt capable of light work but could not find
a conforming job; instead, his testimony suggested that he was incapable of any level of work.
Plaintiff specifically stated that he could not handle the quality assurance inspector job he
obtained in December 2010, which required him to lift anywhere from two to 25 pounds,
generally consistent with light work, see 20 C.F.R. § 404.1567(b), because of the lifting
requirement and his pain. (Tr. at 36-37.) Thus, any error in finding the inconsistency
“inherent” was harmless. See generally Halsell v. Astrue, 357 Fed. Appx. 717, 722 (7th Cir.
2009) (“Not all of the ALJ’s reasons must be valid as long as enough of them are[.]”).
4.

Daily Activities

Finally, plaintiff takes issue with the ALJ’s reliance on his daily activities, noting that the
Seventh Circuit has “urged caution in equating these activities with the challenges of daily
employment.” Beardsley v. Colvin, 758 F.3d 834, 838 (7th Cir. 2014). The ALJ did not equate
plaintiff’s activities with full-time work; rather, he compared them to plaintiff’s specific
allegations about how his impairments affected his functioning:
[Plaintiff’s] allegations that his impairments affect his abilities to squat, bend,
stand, use his hands, walk, sit, kneel, talk, hear, climb stairs, see, complete
tasks, understand, and follow instructions were not consistent with examination
findings or his admitted activities of daily living, which as noted above in finding
number three suggest a high level of daily functioning.

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(Tr. at 18.)

It was not unreasonable for the ALJ to find plaintiff’s allegation that his

impairments affected every single ability listed on the function report (Tr. at 230) inconsistent
with the medical evidence and plaintiff’s reported daily activities. Citing Murphy v. Colvin, 759
F.3d 811, 817 (7th Cir. 2014), plaintiff contends in reply that the ALJ was required to first ask
him about the inconsistency before relying on it. In Murphy, the ALJ discounted the claimant’s
credibility because she took a vacation, without asking what she did on that trip. Id. In the
present case, the ALJ specifically asked plaintiff about a variety of daily activities. (Tr. at 4547.)
In sum, “although the ALJ’s adverse credibility finding was not perfect, it was also not
‘patently wrong.’” Schreiber v. Colvin, 519 Fed Appx. 951, 961 (7th Cir. 2013).
B.

RFC
For his second challenge to the ALJ’s decision, plaintiff argues that the RFC for

medium work – which requires lifting up to 50 pounds, 25 pounds frequently, see 20 C.F.R.
§ 404.1567(c) – lacks support in the longitudinal record. He cites his own testimony regarding
his unsuccessful work attempt in December 2010 and his limitations in performing household
chores, as well as the exam findings of weakness in the right upper extremity. He contends
that the ALJ pointed to no medical evidence to support his medium RFC.
Plaintiff is wrong. The ALJ specifically credited the reports of the state agency medical
consultants, both of whom opined that plaintiff could perform medium work with no more than
occasional overhead reaching with the right arm. (Tr. at 18, 77-78, 387.)19 Plaintiff cites no

In his reply brief, plaintiff notes that the consultants provided their opinions in 2011,
meaning the ALJ relied on no evidence from 2012 and 2013. However, the argument in the
main brief was that the “ALJ points to no evidence to support his medium RFC finding” (R. 10
at 20), not that the evidence the ALJ credited was stale. Arguments raised for the first time
in reply are waived. See, e.g., Mendez v. Perla Dental, 646 F.3d 420, 423-24 (7th Cir. 2011).
In any event, the ALJ did cite medical evidence from 2012 and 2013. (Tr. at 18.)
19

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contrary medical opinion evidence.

Further, the ALJ acknowledged the intermittent

references to decreased strength in the medical records (Tr. at 17) but concluded, based on
a longitudinal review of the record (Tr. at 17-18), that plaintiff remained capable of medium
work. Finally, the ALJ discounted plaintiff’s testimony regarding the severity of his limitations.
Plaintiff next contends that the ALJ erred in failing to consider all non-severe
impairments in combination with the severe impairment. Specifically, he faults the ALJ for
failing to include limitations based on medication side effects and depression. He notes his
testimony that he experienced side effects of nausea, dizziness, sleepiness, loss of mental
focus, and constipation (Tr. at 37) and had problems with his memory (Tr. at 43). He further
notes that Dr. Stolarski found mild to moderate impairment in immediate memory (Tr. at 378),
possibly due to his use of morphine (Tr. at 377). He contends that these impairments would
cause problems with semi-skilled or skilled work.
The ALJ specifically considered plaintiff’s reported memory problems and the mild to
moderate deficits in immediate memory noted during the exam with Dr. Stolarski. However,
the ALJ noted that despite these alleged problems plaintiff was able to engage in activities
that required a significant amount of concentration, persistence, and pace. The ALJ also
noted that plaintiff exhibited no problems with concentration or pace during the consultative
exam and appeared to have no difficulties following along at the hearing. (Tr. at 15.) The ALJ
further noted that Dr. Stolarski found no work-related mental limitations. Dr. Stolarski
concluded that plaintiff could understand, remember, and carry out simple instructions;
respond appropriately to supervisors and co-workers; maintain concentration, attention, and
work pace; withstand routine work stressors; and adapt to change. (Tr. at 15, 380.) The ALJ
also credited the opinions of the state agency psychological consultants, Drs. King and
Donahoo, who found plaintiff’s depression non-severe.
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(Tr. at 16.)

Finally, as the

Commissioner notes, plaintiff cites no medical evidence that depression or medication side
effects would limit his ability to work.20
Plaintiff also contends that the ALJ failed to account for his (non-severe) obesity.21 As
discussed above, the ALJ considered plaintiff’s obesity at step three, finding no impact on any
system’s functioning. (Tr. at 14.) Plaintiff points to no evidence that his weight affects his
ability to work such that the ALJ should have included further limitations in the RFC. See
Skarbek v. Barnhart, 390 F.3d 500, 504 (7th Cir. 2004) (affirming where the claimant did not
specify how his obesity further impaired his ability to work). In his reply brief, plaintiff cites
Goins v. Colvin, 764 F.3d 677, 681 (7th Cir. 2014), in support of the contention that the ALJ
must evaluate obesity’s cumulative impact, but in that case the morbidly obese claimant also
suffered from pain and numbness in the legs caused by spinal disease. This case involves
nothing of the sort.
Finally, plaintiff argues that the ALJ failed to provide the function-by-function
assessment required by SSR 96-8p. 1996 SSR LEXIS 5, at *8. Plaintiff contends that the
ALJ found him capable of medium work without first discussing his ability to lift 50 pounds.
The ALJ credited the state agency consultants’ opinions that plaintiff could lift up to 50 pounds
(Tr. at 18, 77), rejecting plaintiff’s subjective contention that he could not lift that much.

In his reply brief, plaintiff contends that Dr. Stolarski opined that he was capable of
understanding, remembering, and carrying out only simple instructions, which would preclude
semi-skilled work. Dr. Stolaski found plaintiff able to handle simple instructions, but he did
not limit plaintiff to simple instructions. (Tr. at 380.) Earlier in the report, Dr. Stolarski stated:
“I evidence no problem with concentration and pace.” (Tr. at 379.)
20

At the hearing, plaintiff testified that he stood 5'10" and weigh 208 pounds. (Tr. at 3031.) I note that, according to the National Institute of Health’s Body Mass Index calculator,
plaintiff’s BMI is 29.8, which qualifies as overweight but not obese.
http://www.nhlbi.nih.gov/health/educational/lose_wt/BMI/bmicalc.htm.
21

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Plaintiff points to no medical evidence supporting a greater lifting restriction. As the Seventh
Circuit has noted:
A function-by-function assessment of an individual’s limitations ensures that the
ALJ does not overlook an important restriction and thereby incorrectly classify
the individual’s capacity for work. But an ALJ need not provide superfluous
analysis of irrelevant limitations or relevant limitations about which there is no
conflicting medical evidence.
Zatz v. Astrue, 346 Fed. Appx. 107, 111 (7th Cir. 2009) (internal citations omitted); see also
Anderson v. Colvin, No. 13-C-788, 2014 U.S. Dist. LEXIS 151646, at *90 (E.D. Wis. Oct. 25,
2014) (citing Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013) (“[W]e agree with our sister
Circuits that remand is not necessary merely because an explicit function-by-function analysis
was not performed.”)).
For these reasons, I cannot find reversible error in the ALJ’s RFC determination.
C.

Appeal Council Review
Plaintiff also challenges the Appeal Council’s refusal to review the ALJ’s decision.

Appeals Council review is governed by 20 C.F.R. 404.970. That regulation provides, in
pertinent part:
(b) If new and material evidence is submitted, the Appeals Council shall
consider the additional evidence only where it relates to the period on or before
the date of the administrative law judge hearing decision. The Appeals Council
shall evaluate the entire record including the new and material evidence
submitted if it relates to the period on or before the date of the administrative
law judge hearing decision. It will then review the case if it finds that the
administrative law judge’s action, findings, or conclusion is contrary to the
weight of the evidence currently of record.
Id. § 404.970(b). As the Seventh Circuit has noted, the regulation is not a model of clarity.
Perkins v. Chater, 107 F.3d 1290, 1294 (7th Cir. 1997). In Perkins, the court of appeals
explained that the regulation contemplates a three-step process:
[O]nce the Council has assured itself that the proffered new material relates to
the appropriate time period, the first step it must take is to decide whether the
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submission is really “new” and “material.” If it is, the Council must proceed
under the second sentence to evaluate the entire record including that new and
material evidence. If it concludes as a result of that evaluation that the
administrative law judge’s action appears to be contrary to the weight of the
evidence “currently” of record – that is, the old evidence plus the new
submissions – only then does it proceed to a full review of the case.
Id. at 1294. In Perkins, the claimant satisfied the first two steps: the evidence related to the
proper time period and the Appeals Council treated it as new and material. However, he
“failed at step three: upon its consideration of the entire record, the Council concluded that
there was nothing before it that undermined the ALJ’s earlier decision. It accordingly denied
review.” Id. The Seventh Circuit found no error of law in this method of proceeding and no
basis for reviewing the Council’s discretionary decision at the third step. Id.22
Accordingly, the federal court reviews de novo the Appeals Council’s conclusion as to
whether the evidence is new, material, and related to the period on or before the date of the

The agency’s Hearings, Appeals, and Litigation Law Manual (“HALLEX”) confirms the
procedure. When a claimant submits additional evidence, the Appeals Council must first
determine whether it is new, material, and relates to the period on or before the date of the
ALJ’s decision. If the evidence is not new, material, or related to the period at issue, the
Council will not mark the evidence as an exhibit and will include in the denial notice language
specifically identifying the evidence and stating, as applicable, that the evidence was not new
and/or material or did not relate to the relevant period. HALLEX I-3-5-20, Section A.,
http://www.ssa.gov/OP_Home/hallex/I-03/I-3-5-20.html. If the additional evidence is new,
material, and time-relevant, but on review of the entire record the Council does not find the
ALJ’s action, findings, or conclusion contrary to the weight of the evidence currently of record,
the Council will prepare a denial notice, including language identifying the evidence and
explaining that the evidence did not provide a basis for granting review under the “weight of
the evidence” standard. The Council will also exhibit the additional evidence, preparing an
exhibit list with the accompanying order. HALLEX I-3-5-20, Section B.,
http://www.ssa.gov/OP_Home/hallex/I-03/I-3-5-20.html. Finally, if the Council finds that the
evidence is new, material, and time-relevant, and on review of the entire record finds the
ALJ’s decision contrary to the weight of the evidence currently of record, it will grant review.
The Council’s determination that the ALJ’s decision is contrary to the weight of the evidence
currently of record is thus a predicate to “full” review of the case. See Luckerson v. Apfel, No.
99 cv 8483, 2000 U.S. Dist. LEXIS 12453, at *23 (N.D. Ill. Aug. 22, 2000). The regulations
further state that when the Council decides to grant review, it will mail a notice to all parties
stating the reasons for the review and the issues to be reviewed. 20 C.F.R. § 404.973.
22

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ALJ’s decision. However, absent some error in the Council’s legal conclusion, the Council’s
discretionary determination that the evidence does not undermine the ALJ’s decision is
unreviewable. See, e.g., Alexander v. Barnhart, No. 01 C 168, 2003 U.S. Dist. LEXIS 10419,
at *22 (N.D. Ill. June 18, 2003).
In this case, the Council’s notice denying review stated, in pertinent part:
In looking at your case, we considered the reasons you disagree with the
decision and the additional evidence listed on the enclosed Order of Appeals
Council. We considered whether the Administrative Law Judge’s action,
findings, or conclusion is contrary to the weight of the evidence.
We found that this information does not provide a basis for changing the
Administrative Law Judge’s decision.
(Tr. at 1-2.)
Plaintiff argues for de novo review, citing Farrell v. Astrue, 692 F.3d 767 (7th Cir. 2012).
In Farrell, the Council stated “that it ‘considered . . . the additional evidence . . . [and] found
that this information does not provide a basis for changing the Administrative Law Judge’s
decision.’” Id. at 771. The court found the language ambiguous. “On the one hand, it might
indicate that the Appeals Council found the proffered new evidence to be immaterial, but on
the other hand it might indicate that the Council accepted the evidence as material but found
it insufficient to require a different result.” Id. After reviewing cases from other circuits, the
court interpreted the Council’s decision as stating that it had rejected the evidence as nonqualifying under the regulation and proceeded along the lines indicated in Perkins to review
that limited question. Id.
Plaintiff argues that, under Farrell, I should assume that the Council rejected the
evidence as non-qualifying in his case and proceed to consider whether the evidence was,
in fact, new and material. The Commissioner responds that Farrell is distinguishable. First,
the Council’s order in this case includes language the Farrell order did not, which resolves the
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ambiguity – “We considered whether the Administrative Law Judge’s action, findings, or
conclusion is contrary to the weight of the evidence.”23 (Tr. at 1-2.) The Commissioner
contends that, had the Council found the evidence non-qualifying, it would not have
proceeded to apply the “weight of the evidence” test. Second, the Commissioner notes that
in this case the Council followed the procedure in Section B of HALLEX I-3-5-20, see note 22,
supra, which applies when the Council finds that the evidence is new, material, and time
relevant, but does not provide a basis for granting review. Specifically, the Council marked
the additional evidence plaintiff submitted as exhibits 18F and 19F (Tr. at 4-5), which it would
not have done had it found the evidence non-qualifying. Because the Council accepted the
evidence but concluded, in its discretion, that it did not provide a basis for changing the ALJ’s
decision, its order is unreviewable in court.
In reply, plaintiff cites Rodehan-Hendress v. Colvin, No. 14cv17, 2015 U.S. Dist. LEXIS
21737 (N.D. Ind. Feb. 24, 2015), in which the court rejected a similar argument by the
Commissioner:
[T]he Commissioner’s argument that the Appeals Council somehow must have
determined that the evidence was new and material before moving on to review
the case fails because the Notice of Appeals Council Action clearly states “We
have denied your request for review.” If a review had been granted, then a
formal decision discussing whether the evidence was considered as new and
material would have been written and new findings issued. Thus, it appears
that the Appeals Council failed to properly evaluate the new evidence, or, if it
did evaluate the new evidence, it failed to issue a decision discussing the
evidence. For this reason, the court will now remand the entire case to the ALJ
so that all of the evidence may be considered anew.
Id. at *20-21. Plaintiff contends that, as in Rodehan-Hendress, there is no indication that the
Appeals Council considered the evidence in his case because the Council’s order states that

In her brief, the Commissioner fully quotes the operative language of the Council’s
order in Farrell. (R. 11 at 18.) Plaintiff does not dispute that the Farrell order omitted the
language quoted in the attached text.
23

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it denied review. This argument skips a step in the analysis. The Council need not grant
review every time it finds additional evidence new, material, and time-relevant. Rather, it will
grant review if it also finds the ALJ’s decision contrary to the weight of the evidence “currently”
of record (the old evidence plus the new submissions). Perkins, 107 F.3d at 1294. Put
another way, the Council can deny review while still finding the additional evidence new and
material. Perkins rejected the contention implicit in plaintiff’s argument – that the Council
“either [has] to refuse altogether to look at the additional materials, or it [has] to give plenary
appellate review with all the trappings.” Id. at 1293.
Plaintiff points out that, unlike in Perkins, the Council’s order in this case does not
specifically state that it “evaluated the entire record including the new and material evidence
submitted.” 107 F.3d at 1294. Rather, the Council stated, “we considered the reasons you
disagree with the decision and the additional evidence listed on the enclosed Order of
Appeals Council.” (Tr. at 1.) Plaintiff contends that nothing in the order says that the Council
reviewed the “entire record.” However, the next sentence of the order states that the Council
“considered whether the Administrative Law Judge’s action, findings, or conclusion is contrary
to the weight of the evidence.” (Tr. at 1.) And, in the preceding paragraph of the order, the
Council stated that it would review a case if it “receive[d] new and material evidence and the
decision is contrary to the weight of all the evidence now in the record.” (Tr. at 1.) Finally,
plaintiff offers no reply to the Commissioner’s contention that Council would not have
exhibited the additional evidence had it not first found the evidence new and material.
Because the Council’s order, fairly read, shows that Council found the evidence new
and material but nevertheless made the discretionary decision not to grant review, I may not
review the Council’s decision.

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IV. CONCLUSION
THEREFORE, IT IS ORDERED that the ALJ’s decision is AFFIRMED, and this case
is DISMISSED. The Clerk is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 1st day of May, 2015.
/s Lynn Adelman
LYNN ADELMAN
District Judge

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