Kolosso v. Commissioner of the Social Security Administration

Filing 27

DECISION AND ORDER signed by Magistrate Judge David E Jones. IT IS HEREBY ORDERED that the Commissioner's decision is AFFIRMED. IT IS FURTHER ORDERED that this action is DISMISSED. (cc: all counsel)(blr)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
RICK JAMES KOLOSSO,

Case No. 16-CV-825

Plaintiff,
v.
COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION,
Defendant.
DECISION AND ORDER

Rick James Kolosso alleges disability based on a number of physical and
mental impairments. After the Social Security Administration denied his
applications for disability benefits, Mr. Kolosso requested and received a hearing
before an Administrative Law Judge (ALJ). The ALJ determined that Mr. Kolosso
remained capable of working notwithstanding his impairments. Mr. Kolosso now
seeks judicial review of that decision.
Mr. Kolosso argues that the ALJ erred by failing to apply the correct legal
standards in finding Kolosso not disabled. The Commissioner contends that
substantial evidence supports the ALJ’s decision. For the reasons that follow, the
Court finds that the ALJ did not commit reversible error when she determined that
Mr. Kolosso is not disabled. The Court therefore will affirm the Commissioner’s
decision denying Mr. Kolosso disability benefits.

I.

Background
Rick James Kolosso was born on July 26, 1976. Transcript 40. As of October

29, 2014, Mr. Kolosso was married and had two children, ages nine and fourteen.
Tr. 41. Mr. Kolosso was approximately 5’9’’ tall and weighed 360 pounds. He did not
have any income but his wife provided for the household. Tr. 43. Mr. Kolosso
completed high school and received his Associates Degree. Tr. 41. He previously
worked in remodeling and construction but stopped working in 2010 due to physical
and mental ailments. Tr. 42.
Mr. Kolosso suffers from a number of impairments, including sleep apnea,
fibromyalgia, osteoarthritis, hypertension, depression, anxiety disorder, panic
disorder, and chronic fatigue syndrome. TR. 63. In February 2012, he filed
applications for disability insurance benefits and supplemental security income,
alleging disability as of April, 25, 1999. Tr. 64. After the Social Security
Administration denied his applications initially, Tr. 15, and upon reconsideration,
Mr. Kolosso requested and received a hearing before an administrative law judge.
Tr. 15. Mr. Kolosso was represented by counsel at the October 29, 2014 hearing; the
ALJ heard testimony from Mr. Kolosso and a vocational expert. Tr. 40-59.
The ALJ followed the five-step sequential evaluation process and on January
21, 2015, she issued a decision unfavorable to Mr. Kolosso. Tr. 15–26. The ALJ
determined that (1) Mr. Kolosso engaged in substantial gainful activity since his
alleged onset date; (2) Mr. Kolosso suffered from the following severe impairments:
sleep apnea, fibromyalgia, right knee cyst, cardiomegaly, possible somatoform

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disorder, possible osteoarthritis of the wrists, depression, anxiety disorder, and
panic disorder; (3) Mr. Kolosso did not suffer from an impairment or combination of
impairments that met or medically equaled the severity of a presumptively
disabling impairment; Mr. Kolosso had the residual functional capacity to perform
sedentary work limited to simple, routine, repetitive, non-complex work; (4) Mr.
Kolosso was not able to perform his past relevant work as a carpenter and janitor;
and (5) Mr. Kolosso remained capable of performing the requirements of various
unskilled, sedentary occupations. See Tr. 17–25. Based on those findings, the ALJ
concluded that Mr. Kolosso was not disabled.
Thereafter, the Appeals Council denied Mr. Kolosso’s request for review, Tr.
1–6, making the ALJ’s decision the final decision of the Commissioner of Social
Security, see Loveless v. Colvin, 810 F.3d 502, 506 (7th Cir. 2016).
Mr. Kolosso filed this action on June 28, 2016, seeking judicial review of the
Commissioner’s decision under 42 U.S.C. § 405(g). Complaint, ECF No. 1. The
matter was reassigned to this Court after both parties consented to magistrate
judge jurisdiction. See Consent to Proceed Before a Magistrate Judge, ECF Nos. 4 &
6 (citing 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73(b)). It is now fully briefed and
ready for disposition. See Plaintiff’s Brief, ECF No. 20; Defendant’s Memorandum in
Support of the Commissioner’s Decision, ECF No. 24; and Plaintiffs Reply Brief,
ECF. No 25.

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II.

Standard of Review
“Judicial review of Administration decisions under the Social Security Act is

governed by 42 U.S.C. § 405(g).” Allord v. Astrue, 631 F.3d 411, 415 (7th Cir. 2011)
(citing Jones v. Astrue, 623 F.3d 1155, 1160 (7th Cir. 2010)). Pursuant to sentence
four of § 405(g), federal courts have the power to affirm, reverse, or modify the
Commissioner’s decision, with or without remanding the matter for a rehearing.
Judicial review is limited to determining whether the Commissioner’s final
decision is supported by “substantial evidence.” See § 405(g); see also Moore v.
Colvin, 743 F.3d 1118, 1120–21 (7th Cir. 2014). Substantial evidence is “such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Moore, 743 F.3d at 1120–21 (quoting Richardson v. Perales, 402 U.S.
389, 401 (1971)). The ALJ’s decision must be affirmed if it is supported by
substantial evidence, “even if an alternative position is also supported by
substantial evidence.” Scheck v. Barnhart, 357 F.3d 697, 699 (7th Cir. 2004).
In reviewing the record, this Court “may not re-weigh the evidence or
substitute its judgment for that of the ALJ.” Skarbek v. Barnhart, 390 F.3d 500, 503
(7th Cir. 2004). Rather, the Court must determine whether the ALJ built an
“accurate and logical bridge between the evidence and the result to afford the
claimant meaningful judicial review of the administrative findings.” Beardsley v.
Colvin, 758 F.3d 834, 837 (7th Cir. 2014); Moore, 743 F.3d at 1121. The ALJ’s
decision must be reversed “[i]f the evidence does not support the conclusion.”

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Beardsley, 758 F.3d at 837. Likewise, the Court must remand “[a] decision that
lacks adequate discussion of the issues.” Moore, 743 F.3d at 1121.
Reversal also is warranted “if the ALJ committed an error of law or if the
ALJ based the decision on serious factual mistakes or omissions,” regardless of
whether the decision is otherwise supported by substantial evidence. Beardsley, 758
F.3d at 837 (citations omitted). An ALJ commits an error of law if his decision “fails
to comply with the Commissioner’s regulations and rulings.” Brown v. Barnhart,
298 F. Supp. 2d 773, 779 (E.D. Wis. 2004). Reversal is not required, however, if the
error is harmless. See, e.g., Farrell v. Astrue, 692 F.3d 767, 773 (7th Cir. 2012); see
also Keys v. Barnhart, 347 F.3d 990, 994–95 (7th Cir. 2003).
III.

Discussion
Mr. Kolosso maintains that he is disabled and therefore entitled to disability

benefits under the Social Security Act; alternatively, he seeks remand to the
Commissioner for further administrative proceedings. Brief 24.
A. Legal framework
Under the Social Security Act, a person is “disabled” only if he is unable “to
engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or has
lasted or can be expected to last for a continuous period of not less than 12 months.”
See 42 U.S.C. §§ 416(i)(1) and 423(d)(1)(A). The disability must be sufficiently
severe that the claimant cannot return to his prior job and is not capable of

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engaging in any other substantial gainful work that exists in the national economy.
§ 423(d)(2)(A).
In determining whether a person is disabled, the SSA must follow a five-step
sequential evaluation process, asking, in order: (1) whether the claimant has
engaged in substantial gainful activity since his alleged onset of disability;
(2) whether the claimant suffers from a medically determinable impairment or
combination of impairments that is severe; (3) whether the claimant’s impairment
or combination of impairments is of a severity to meet or medically equal the
criteria of any impairment listed in the SSA regulations as presumptively disabling;
(4) whether the claimant’s RFC leaves him unable to perform the requirements of
his past relevant work; and (5) whether the claimant is unable to perform any other
work. See 20 C.F.R. § 404.1520(a)(4).
An affirmative answer at either step three or step five leads to a finding that
the claimant is disabled. Briscoe, 425 F.3d at 352. “The claimant bears the burden
of proof at steps one through four.” Id. Once the claimant shows an inability to
perform past work, the burden then shifts to the Commissioner to show the
claimant’s ability to engage in other work existing in significant numbers in the
national economy. Id.
B. Legal analysis
Mr. Kolosso argues that the ALJ erred by (1) failing to apply the correct legal
standards in finding Mr. Kolosso not disabled; and (2) making a disability finding
which is not supported by substantial evidence in the record. Br. 2. Mr. Kolosso

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further maintains that the Appeals Council erred in rejecting new opinion evidence
that was submitted. The court will address each argument in turn.
1. Whether the ALJ erred by failing to apply the correct legal standards
Mr. Kolosso argues that the ALJ erred by failing to apply the correct legal
standards in finding Mr. Kolosso disabled. Specifically, Mr. Kolosso claims that the
ALJ failed to comply with 20 C.F.R. § 404. 1527(c)(2) by erroneously giving
insufficient weight to the medical opinions of Drs. Hanson and Grunert, 1 Mr.
Kolosso’s treating sources. See Plaintiff’s Brief, ECF No. 20.
Section 404.1527 Title 20 of the Code of Federal Regulations, provides a legal
framework for how medical opinion evidence is to be weighed and evaluated. In
order for a treating source’s opinion to be given controlling weight under §
404.1527(c)(2), it must be both “well-supported by medically acceptable clinical and
laboratory diagnostic techniques” and “not inconsistent with the other substantial
evidence” in the case record. 20 C.F.R. § 404.1527(c)(2). If it is determined that a
treating source is not entitled to controlling weight under § 404.1527(c)(2), it is
weighed under regulatory factors, the same as any other medical opinion. 20 C.F.R.
404.1527(c).
With respect to Dr. Hanson’s opinion evidence, the ALJ here afforded it little
weight, concluding that the opinion evidence did not meet the standards set out by
404.1527(c)(2) to entitle it to controlling weight. Mr. Kolosso maintains that the

Mr. Kolosso concedes in his reply brief that a reversal and/or remand turns in
large part on the opinions of Dr. Hanson. See Pl.’s Reply Br. 1. Thus, the Court will
only address Dr. Hanson’s medical opinions.
1

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medical opinion of Dr. Hanson is entitled to controlling weight “as a result of her
unique perspective of and longitudinal picture as treating psychologist.” Pl.’s Br. 12.
The Court disagrees.
To be given controlling weight, a treating source’s medical opinion must be
“well-supported by medically acceptable clinical and laboratory diagnostic
techniques” and “not inconsistent with other substantial evidence” in the record.
§ 404.1527(c)(2). Dr. Hanson became involved in the treatment of Mr. Kolosso in
February 2012 and last saw him in September 2012. Tr. 23. While Mr. Kolosso saw
Dr. Hanson biweekly throughout their seven month treating relationship, Tr. 729,
the ALJ found that Dr. Hanson employed no objective medical testing modalities.
Tr. 23. The ALJ’s determination is supported by Dr. Hanson’s own therapy session
records which give no indication of any psychological testing done on Mr. Kolosso.
See Exhibits 8F, 12F, and 16F. For example, Dr. Hanson states that Mr. Kolosso’s
memory, concentration, and cognitive clarity are diminished, but she gives no basis
for how she came to that conclusion, other than Mr. Kolosso having forgotten about
an appointment. Tr. 173-74. Moreover, Dr. Hanson’s opinions appear to be based on
Mr. Kolosso’s subjective complaints of his symptoms rather than objective evidence.
See Ex. 8F, 12F, and 16F.
The ALJ also found Dr. Hanson’s opinions to be inconsistent with other evidence
in the record, including her own therapy session records. Tr. 23. Dr. Hanson opined
that Mr. Kolosso has had three or more episodes of decompensation within 12
months lasting two weeks or longer, Ex. 20F, but there is no evidence of these

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episodes in Dr. Hanson’s recorded therapy sessions with Mr. Kolosso, or elsewhere
in the record. See Ex. 8F, 12F, and 16F. In fact, much of Dr. Hanson’s treatment of
Mr. Kolosso related to Mr. Kolosso’s martial and familial issues. See Id.
Furthermore, Dr. Hanson opined that Mr. Kolosso has “marked” limitations of daily
living and social functioning, indicating that Mr. Kolosso’s impairments seriously
interfere with his ability to function independently. Tr. 733. The record shows
otherwise; Mr. Kolosso reported daily activities and hobbies such as taking his kids
to and from school, riding his motorcycle, swimming, and driving remote control
vehicles. Ex. 16F. Participation in these activities is inconsistent with an individual
who has “marked” limitations.
For the reasons aforementioned, there is substantial evidence in the record to
show that the ALJ did not give insufficient weight to the opinion evidence of Dr.
Hanson.
2. Whether the ALJ erred by making a disability finding that is not
supported by substantial evidence
Mr. Kolosso maintains that the ALJ erred in making an unfavorable disability
finding. As mentioned above, to make a disability determination, a five-step
sequential evaluation process must be followed. The ALJ here went through each
step of the evaluation process to determine that Mr. Kolosso is not legally disabled.
This Court’s review of the ALJ’s analysis found nothing to undercut that conclusion.
Step one of the evaluation process asks whether the claimant has engaged in
substantial gainful activity since his alleged onset of disability. Mr. Kolosso alleges
his onset date to be April 25, 1999. Tr. 17. The ALJ found that Mr. Kolosso has
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worked since his alleged onset date, with earnings exceeding substantial gainful
activity levels in the years 2000, 2002, and 2003. Id. Moreover, at his hearing with
the ALJ, Mr. Kolosso admitted that he worked through 2010, which is well after his
alleged onset date. Tr. 42. There is substantial evidence in the record to support the
ALJ’s finding that Mr. Kolosso has worked since his alleged onset date.
Step two asks whether the claimant suffers from a medically determinable
impairment or combination of impairments that is severe. The ALJ here determined
that Mr. Kolosso suffered from various severe impairments such as sleep apnea,
fibromyalgia, right knee cyst, cardiomegaly, possible somatoform disorder, possible
osteoarthritis of the wrists, depression, anxiety disorder, and a panic disorder. Tr.
17. In 2006, Mr. Kolosso was diagnosed with cardiomegaly, hypertension, and sleep
apnea. Tr. 396-455; Tr. 334-365. In 2007, Mr. Kolosso was diagnosed with
fibromyalgia and probable osteoarthritis in the wrists. Tr. 330. In 2012, Mr. Kolosso
underwent a mental health assessment for depression and anxiety. Tr. 567-574.
There is substantial evidence in the record to support the ALJ’s finding that Mr.
Kolosso suffers from the severe impairments previously listed.
Step three asks whether the claimant’s impairment or combination of
impairments is of a severity to meet or medically equal the criteria of any
impairment listed in the SSA regulations as presumptively disabling. The ALJ
concluded that the evidence does not support such a conclusion that Mr. Kolosso’s
symptoms meets or equals any medical listing. In making this determination, the
ALJ first considered Mr. Kolosso’s fibromyalgia and concluded that because

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fibromyalgia is not a listed impairment, Mr. Kolosso cannot establish disability
based on this diagnosis alone absent other, disabling symptoms. Tr. 18.
Next, the ALJ considered Mr. Kolosso’s sleep apnea under listing 3.10. Because
there is no clinical evidence that Mr. Kolosso’s sleep apnea has resulted in chronic
cor pulmonale as required to meet the criteria of this listing, the ALJ determined
that this impairment did not qualify Mr. Kolosso as presumptively disabled. The
ALJ also considered Mr. Kolosso’s possible osteoarthritis. To be presumptively
disabling, as defined in 14.00CG and C7 respectively, Mr. Kolosso’s osteoarthritis
needed to have caused him persistent inflammation or deformity of a major
peripheral joint in the upper or lower extremities, resulting in an inability to
ambulate effectively or perform fine and gross motor movements effectively. Tr. 19.
Although Mr. Kolosso has reported pain in his upper and lower extremities, Tr. 49,
there is no indication that his possible osteoarthritis meets the requirements of the
listing. Tr.19.
Finally, the ALJ considered Mr. Kolosso’s mental impairments under the criteria
of listings 12.04, 12.06, and 12.07. To meet any of these listings, Mr. Kolosso must
satisfy “paragraph B” criteria, meaning Mr. Kolosso’s mental impairments must
result in at least two of the following: marked restrictions of activities of daily
living; marked difficulties in maintaining social functioning; marked difficulties in
maintaining concentration, persistence, or pace; or repeated episodes of
decompensation, each of extended duration. Tr. 19.

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With regard to activities of daily living, the ALJ found that Mr. Kolosso’s
restriction in this area is moderate. In support, the ALJ pointed to Mr. Kolosso’s
own testimony that he transports his children to and from school, plays games with
them, and uses the computer. Tr. 19. Additionally, Mr. Kolosso reported to Dr.
Hanson that his hobbies include swimming, riding his motorcycle, and driving
remote controlled vehicles. Ex. 16F. Thus, there is evidence in the record to support
a moderate rather than a marked limitation in this area.
With regard to social functioning, the ALJ found that Mr. Kolosso has moderate
difficulties. Mr. Kolosso reported that he didn’t do any activities with friends or
family, Tr. 45, and that it is hard for him to leave the house, Tr. 580. Nonetheless,
Mr. Kolosso told his doctors that he goes camping and fishing in the summer, and
has movie nights with his family. Ex. 9F. Accordingly, there is evidence in the
record to support a moderate limitation in this area.
With regard to problems with concentration, persistence, or pace, the ALJ again
found that Mr. Kolosso has moderate difficulties. Mr. Kolosso stated that he cannot
remember things, cannot concentrate, and that looking at things too long gives him
a headache. Ex. 9E. Yet, Mr. Kolosso testified that he drives his children to and
from school, spends two hours a day on the computer, and does a lot of reading. Tr.
45-47. The record thus supports the ALJ’s finding of a moderate rather than
marked limitation in this area.
Finally, as for episodes of decompensation, the ALJ stated that the record does
not demonstrate that Mr. Kolosso has experienced any episodes of decompensation.

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While Mr. Kolosso reported that he experiences about two panic attacks per month,
Tr. 568, there is no indication in the record that any episodes of decompensation
have lasted for an extended period of time.
For the above-mentioned reasons, there is sufficient evidence in the record to
support the ALJ’s conclusion that Mr. Kolosso does not have an impairment or a
combination of impairments that meets or equals the severity of one of the listed
impairments.
Step four of the evaluation process asks whether the claimant’s residual
functional capacity (RFC) leaves him unable to perform the requirements of his past
relevant work. In between steps three and four of the evaluation process, the ALJ is
required to make a RFC finding for the claimant; that is, the ALJ must determine
the most that the claimant can do despite his impairments. See 20 C.F.R. § 416.945.
Here, the ALJ determined that Mr. Kolosso has the RFC to perform sedentary
work, limited to simple, routine, repetitive, non-complex tasks. Tr. 20.
Based on Mr. Kolosso’s RFC, the ALJ further determined that Mr. Kolosso is
unable to perform his past relevant work as a carpenter and janitor. 2 Tr. 24. This
finding is supported by the vocational expert’s testimony that Mr. Kolosso would be
incapable of performing his past relevant jobs due to the high exertional
requirements of those jobs compared to the RCF limitations determined by the ALJ.

2 Although

Mr. Kolosso states that he previously worked in remodeling and
construction, the vocational expert testified that the best description of his work in
the Dictionary of Occupational Titles would be that of a carpenter and janitor. Tr.
56-57.
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Tr. 57. There is substantial evidence in the record to support the ALJ’s finding that
Mr. Kolosso is unable to perform past relevant work.
Finally, step five asks whether the claimant is unable to perform any other
work. To determine whether Mr. Kolosso is able to perform other work, the ALJ
considered Mr. Kolosso’s age, education, work experience, and RFC in conjunction
with the Medical-Vocational Guidelines. Tr. 24. The ALJ determined that there are
jobs that exist in significant numbers in the national economy that Mr. Kolosso is
able to perform. In support of that determination, the vocational expert testified
that a person with Mr. Kolosso’s limitations would be qualified to perform multiple
jobs that exist in significant numbers. Those jobs include order clerk, information
clerk, industrial inspector, and security guard, with the number of jobs existing in
the national economy being 220,000; 351,000; 32,400; and 113,000 respectively. Tr.
57-58. Accordingly, there is substantial evidence in the record to support the ALJ’s
finding that Mr. Kolosso is capable of making an adjustment to other work that
exists in the national economy.
For the reasons aforementioned, the ALJ did not err in making a disability
finding that is not supported by substantial evidence.
3. Whether the Appeals Council erred in rejecting new opinion evidence
Mr. Kolosso argues that the Appeals Council erred in rejecting the opinion
evidence of Dr. James Winston. At the time of the Appeals Council’s denial of
review, 20 C.F.R. § 404.970(b) governed the submission of new evidence. Section
404.970(b) states that if new and material evidence is submitted, the Appeals

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Council shall consider the additional evidence only where it relates to the period on
or before the date of the ALJ’s hearing decision. 20 C.F.R. § 404.970(b). If the new
and material evidence relates to the adjudicated period, the ALJ must then
evaluate the entire record, including the new evidence. Id. Mr. Kolosso submitted a
Mental Impairment Questionnaire from Dr. Winston to the Appeals Council after
the ALJ rendered its decision on January 21, 2015. Dr. Winston’s questionnaire was
dated March 3, 2015. Because the ALJ decided Mr. Kolosso’s case through January
21, 2015, the Appeals Council found the new evidence to be outside the relevant
time-period. The Court disagrees.
While Dr. Winston’s questionnaire may have been dated March 3, 2015, the
questionnaire itself reflects Dr. Winston’s interactions with Mr. Kolosso since
December 8, 2014. Report from James Winston MD, ECF No. 26. Thus, the
additional evidence is time-relevant as it relates to the period on or before the date
of the ALJ’s hearing decision.
Nonetheless, it does not follow that a remand or reversal is warranted. As
stated in the defendant’s memorandum, the applicable regulation does not
authorize the Appeals Council to review an ALJ’s decision simply because new,
material, and time-relevant evidence is submitted. Review of an ALJ’s decision is
only appropriate where the new evidence makes the ALJ’s decision contrary to the
weight of the evidence. Def.’s Mem. 11; See 20 C.F.R. § 404.970(b). Dr. Winston’s
questionnaire fails to meet that standard.

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Dr. Winston did not examine Mr. Kolosso until December 8, 2014, a little over
a month before the ALJ made its hearing decision. ECF. No. 26. There is no
indication that Dr. Winston’s opinion is based on a long-term assessment of Mr.
Kolosso’s functioning and limitations. Furthermore, like Dr. Hanson’s opinion
evidence, which the ALJ gave little weight to, Dr. Winston’s opinion does not appear
to be supported by objective medical evidence or testing. For example, Dr. Winston
opinioned that Mr. Kolosso has “marked” functional limitation in all categories,
ECF No. 26 at 5, but provides no basis for that determination. Additionally, Dr.
Winston opined that Mr. Kolosso has had four or more episodes of decompensation,
each lasting at least two weeks, but there is no objective evidence elsewhere in the
record to support that opinion. For these reasons, the Appeals Council did not err in
rejecting the opinion evidence of Dr. Winston.
IV.

Conclusion
For all the above-mentioned reasons, the Court finds that the ALJ did not

commit reversible error in making an unfavorable disability determination. The
Court will therefore affirm the ALJ’s decision denying Mr. Kolosso’s claim for
disability benefits.
NOW, THEREFORE, IT IS HEREBY ORDERED that the Commissioner’s
decision is AFFIRMED.
IT IS FURTHER ORDERED that this action is DISMISSED.
FINALLY, IT IS ORDERED that the Clerk of Court enter judgment
accordingly.

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Dated at Milwaukee, Wisconsin, this 10th day of August, 2018.
BY THE COURT:
s/ David E. Jones
DAVID E. JONES
United States Magistrate Judge

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