Cole v. Berryhill

Filing 18

DECISION AND ORDER signed by Magistrate Judge David E Jones. 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
JOHNATHAN DEMOND COLE, SR.,
Plaintiff,
v.

Case No. 17-CV-1366

NANCY A. BERRYHILL,
Deputy Commissioner of Operations,
Social Security Administration,
Defendant.

DECISION AND ORDER AFFIRMING THE COMMISSIONER’S DECISION

Johnathan Demond Cole, Sr., alleges that he is unable to work due to back
problems and mental-health impairments. After the Social Security Administration
denied his applications for benefits, Mr. Cole requested and received a hearing
before an administrative law judge. The ALJ determined that Mr. Cole remained
capable of working notwithstanding his impairments. Mr. Cole now seeks judicial
review of that decision.
Mr. Cole argues that the ALJ erred in evaluating his subjective allegations of
disabling symptoms and in weighing the opinions of his treating source. The
Commissioner contends that the ALJ’s decision is supported by substantial
evidence. The Court agrees with the Commissioner. Because the ALJ did not err
when she only partially credited Mr. Cole’s allegations and the opinions of his
nurse, her decision denying Social Security benefits to Mr. Cole will be affirmed.

I.

Background
Mr. Cole was born in Aberdeen, Mississippi, on December 11, 1982.

Transcript 309, ECF Nos. 11-2–11-9. He moved to Kenosha, Wisconsin, at age three
or four but returned to Mississippi during high school. Mr. Cole received specialeducation services throughout his schooling. Tr. 37, 309. He graduated from high
school in 2000. Mr. Cole got married in 2008. Tr. 193. He and his wife have three
minor children. Tr. 36–37, 193. Mr. Cole has worked as a machine operator, fastfood worker, and line worker. See Tr. 228. He was fired from his most recent job in
February 2013. Tr. 227.
In September 2013, Mr. Cole applied for disability insurance benefits, Tr.
192–99, and supplemental security income, Tr. 200–05, alleging that he became
disabled on February 28, 2013. Mr. Cole asserted that he was unable to work due to
a learning disability, back problems, lung issues, and anxiety. See Tr. 227. After the
SSA denied his applications initially, Tr. 65–88, and upon reconsideration, Tr. 89–
114, Mr. Cole requested a hearing before an ALJ, see Tr. 130–31. The SSA granted
Mr. Cole’s request, see Tr. 132–52, 155–86, and held an administrative hearing on
May 10, 2016, before ALJ Janice M. Bruning, see Tr. 33–64. Mr. Cole was
represented by an attorney at the hearing. See Tr. 33.
Mr. Cole testified at the hearing. He indicated that he was living in an
apartment in Fond du Lac, Wisconsin, with his wife and children. See Tr. 37, 140.
Mr. Cole stated that, prior to being involved in a motor vehicle accident in March
2015, he did not receive much treatment or care for his physical impairments. Tr.

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40. However, since the accident, he experienced constant, daily pain in his neck,
shoulder, and arm that impacted nearly all activity. Tr. 45–50, 53–55. After the
accident, his wife helped with most daily activities. Tr. 47–49. Mr. Cole testified
that he could walk only a few feet before needing to stop and rest, stand for fifteen
to twenty minutes at a time, sit for twenty to thirty minutes at a time, and lift
about five pounds. Tr. 43–44. He used a cane every day, but it was not prescribed by
a doctor. Tr. 44–45. Mr. Cole also reported difficulty climbing stairs, bending,
stooping, crouching, crawling, using his right hand, and sleeping. Tr. 44–50.
As for his mental impairments, Mr. Cole indicated that he read at a thirdgrade level and his math skills were at a second-grade level. Tr. 50–51. He testified
to having low self-esteem and experiencing crying spells. Tr. 41. Additionally, Mr.
Cole reported suffering about four panic attacks each week. Tr. 42.
The ALJ also heard testimony from Timothy Tansey, a vocational expert. Mr.
Tansey testified that a hypothetical individual with Mr. Cole’s age, education, and
work experience could no longer perform his past jobs. Tr. 56–57. Such an
individual could still perform other jobs, however, even if he were limited to a
restricted range of sedentary work. See Tr. 57–62. According to Mr. Tansey, those
other jobs would allow an employee to be off-task no more than ten percent of the
workday, and employers at those jobs would tolerate, on average, one unexcused
absence each month. Tr. 62. No jobs would be available if the individual could only
occasionally “handle, finger, and feel” with his right hand. Tr. 61–62.

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On August 1, 2016, the ALJ issued a decision unfavorable to Mr. Cole. Tr.
12–32. The ALJ determined that Mr. Cole had not engaged in substantial gainful
activity since his alleged onset date; Mr. Cole suffered from five “severe”
impairments: lumbar spinal disorder, obesity, affective disorder, anxiety disorder,
and cervical spine disorder; Mr. Cole did not suffer from an impairment or
combination of impairments that met or medically equaled the severity of a
presumptively disabling impairment; as of March 2015, Mr. Cole had the RFC to
perform a restricted range of sedentary work; Mr. Cole was unable to perform any
past relevant work; and other jobs existed in significant numbers in the national
economy that Mr. Cole could perform. See Tr. 15–27. Based on those findings, the
ALJ concluded that Mr. Cole was not disabled.
Thereafter, Mr. Cole requested review of the ALJ’s decision by the SSA’s
Appeals Council. Tr. 189–191. On August 6, 2017, the Appeals Council denied Mr.
Cole’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. Cole filed this action on October 6, 2017, seeking judicial review of the
Commissioner’s decision under 42 U.S.C. § 405(g). Complaint, ECF No. 1 at 2–3.
The matter was reassigned to this Court after the parties consented to magistrate
judge jurisdiction. See Order Reassigning Case on Consent, ECF No. 5; see also
Consent to Proceed Before a Magistrate Judge, ECF Nos. 3, 4 (citing 28 U.S.C.
§ 636(c) and Fed. R. Civ. P. 73(b)). It is now fully briefed and ready for disposition.

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See Plaintiff’s Brief in Opposition, ECF No. 12; Defendant’s Memorandum in
Support of the Commissioner’s Decision, ECF No. 16; Plaintiff’s Reply Brief, ECF
No. 17.
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.
Section 205(g) of the Act limits the scope of judicial review of the
Commissioner’s final decision. See § 405(g). As such, the Commissioner’s findings of
fact shall be conclusive if they are supported by “substantial evidence.” See § 405(g).
Substantial evidence is “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Moore v. Colvin, 743 F.3d 1118, 1120–21 (7th
Cir. 2014) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)) (other citations
omitted). 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) (citing Arkansas v. Oklahoma,
503 U.S. 91, 113 (1992)).
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) (citing Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir.

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2003)). Rather, reviewing courts 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) (citing Blakes v. Barnhart, 331 F.3d 565,
569 (7th Cir. 2003) and Zurawski v. Halter, 245 F.3d 881, 887 (7th Cir. 2001)). The
ALJ’s decision must be reversed “[i]f the evidence does not support the conclusion.”
Beardsley, 758 F.3d at 837 (citing Blakes, 331 F.3d at 569). Likewise, reviewing
courts must remand “[a] decision that lacks adequate discussion of the issues.”
Moore, 743 F.3d at 1121 (citations omitted).
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 her decision “fails
to comply with the Commissioner’s regulations and rulings.” Brown v. Barnhart,
298 F. Supp. 2d 773, 779 (E.D. Wis. 2004) (citing Prince v. Sullivan, 933 F.2d 598,
602 (7th Cir. 1991)). 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) (citations omitted).
III.

Discussion
Mr. Cole maintains that the ALJ’s decision denying him Social Security

benefits is not supported by substantial evidence and is contrary to SSA law and
regulation. Compl. ¶ 5. He asks the Court to enter judgment finding that he is

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disabled or, alternatively, to reverse and remand the matter to a different ALJ for a
de novo hearing. Pl.’s Br. 22.
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), 423(d)(1)(A). The disability must be sufficiently severe
that the claimant cannot return to his prior job and is not capable of engaging in
any other substantial gainful work that exists in the national economy. 42 U.S.C.
§ 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), 416.920(a)(4).

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An affirmative answer at either step three or step five leads to a finding that
the claimant is disabled. Briscoe v. Barnhart, 425 F.3d 345, 352 (7th Cir. 2005).
“The claimant bears the burden of proof at steps one through four.” Id. (citing
Young v. Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004)). 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. Cole argues that the ALJ erroneously discounted his subjective
complaints concerning the limiting effects of his impairments and failed to give
sufficient weight to the opinions of his treating nurse.
1. Whether the ALJ erred in evaluating Mr. Cole’s subjective
symptoms
ALJs use a two-step process for evaluating an individual’s symptoms. Social
Security Ruling No. 16-3p, 2016 SSR LEXIS 4, at *5–10 (Mar. 16, 2016). First, the
ALJ must “determine whether the individual has a medically determinable
impairment (MDI) that could reasonably be expected to produce the individual’s
alleged symptoms.” Id. at *5. Second, the ALJ must “evaluate the intensity and
persistence of an individual’s symptoms such as pain and determine the extent to
which an individual’s symptoms limit his or her ability to perform work-related
activities.” Id. at *9.
Reviewing courts “will overturn an ALJ’s decision to discredit a claimant’s
alleged symptoms only if the decision is ‘patently wrong,’ meaning it lacks
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explanation or support.” Cullinan v. Berryhill, 878 F.3d 598, 603 (7th Cir. 2017)
(quoting Murphy v. Colvin, 759 F.3d 811, 816 (7th Cir. 2014)). “A credibility
determination lacks support when it relies on inferences that are not logically based
on specific findings and evidence.” Id. “In drawing its conclusions, the ALJ must
‘explain her decision in such a way that allows [a reviewing court] to determine
whether she reached her decision in a rational manner, logically based on her
specific findings and the evidence in the record.” Murphy, 759 F.3d at 816 (quoting
McKinzey v. Astrue, 641 F.3d 884, 890 (7th Cir. 2011)).
The ALJ here concluded that Mr. Cole’s medically determinable impairments
could reasonably be expected to cause his alleged symptoms but found that Mr.
Cole’s statements concerning the intensity, persistence, and limiting effects of those
symptoms were “not entirely consistent with the medical evidence and other
evidence in the record.” Tr. 23. Ultimately, the ALJ determined that, following the
motor vehicle accident, Mr. Cole could perform sedentary work1 with the following
additional restrictions: no climbing ladders, ropes, or scaffolding; no more than
occasional climbing of ramps and stairs, balancing, stooping, crouching, kneeling,
crawling, bending, and twisting; must avoid concentrated exposure to work hazards
such as unprotected heights and dangerous moving machinery; no more than
occasional overhead reaching with the right upper extremity; no more than frequent

“Sedentary work involves lifting no more than 10 pounds at a time and
occasionally lifting or carrying articles like docket files, ledgers, and small tools.
Although a sedentary job is defined as one which involves sitting, a certain amount
of walking and standing is often necessary in carrying out job duties.” 20 C.F.R.
§§ 404.1567(a), 416.967(a).
1

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handling, fingering, and feeling with the right arm; no more than simple, routine
tasks; no public contact; and no more than occasional contact with co-workers and
supervisors. Tr. 21.
Mr. Cole first argues that the ALJ failed to comply with SSR 16-3p and
instead relied on “meaningless” boilerplate frequently criticized by the Seventh
Circuit. Pl.’s Br. 10 (collecting cases). The Court respectfully disagrees. In this case,
the ALJ went beyond the stock credibility statement and supported her finding with
references to Mr. Cole’s allegations, the objective medical evidence, and the opinion
evidence. See Tr. 22–26. Contrary to Mr. Cole’s suggestion, the ALJ was not
required to “specify which statements were not credible.” See Shideler v. Astrue, 688
F.3d 306, 312 (7th Cir. 2012) (citing Jens v. Barnhart, 347 F.3d 209, 213 (7th Cir.
2003); Simila v. Astrue, 573 F.3d 503, 517 (7th Cir. 2009)). At any rate, it is clear
from the ALJ’s RFC assessment that she accepted many of Mr. Cole’s allegations.
Mr. Cole next argues that the ALJ’s reliance on the lack of objective medical
findings was insufficient to support her credibility finding. Pl.’s Br. 11–12. It’s true
that an ALJ cannot disregard a claimant’s subjective complaints of pain simply
because those complaints are not fully supported by the medical evidence. See Pope
v. Shalala, 998 F.2d 473, 486 (7th Cir. 1993). But that’s not what happened here.
The ALJ in this case considered Mr. Cole’s complaints in light of the objective
medical evidence and reasonably concluded that the inconsistencies between his
complaints and the evidence suggested symptom exaggeration. See Tr. 23; see also
Jones v. Astrue, 623 F.3d 1155, 1161 (7th Cir. 2010) (citing Getch v. Astrue, 539 F.3d

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473, 483 (7th Cir. 2008)). The ALJ also reasoned that Mr. Cole’s allegations were
not entirely consistent with the opinion evidence in the record, the nature of his
treatment, or his ability to carry out certain activities. See Tr. 20, 21–26.
Consequently, the ALJ’s consideration of the objective medical evidence was
consistent with the SSA’s own policy interpretations. See SSR No. 16-3p, 2016 SSR
LEXIS 4, at *10–20 (clarifying how the SSA considers evidence in evaluating
claimants’ subjective allegations).
In addition, the ALJ sufficiently explained how Mr. Cole’s allegations were
inconsistent with the objective medical evidence. For example, the ALJ noted that
Mr. Cole claimed to be disabled as of February 2013 but acknowledged at the
hearing that he did not seek much treatment for his back issues prior to the car
accident in March 2015. Tr. 22; see also Tr. 39–40. Likewise, although Mr. Cole
alleged that he needed a cane to walk, could walk for only a few feet, and could
stand for twenty to thirty minutes, Tr. 43–45, the ALJ accurately noted that
treatment records did not show any gait abnormalities, see Tr. 22 (citing Tr. 355–
361, 421–30). And the ALJ noted that Mr. Cole demonstrated good strength upon
physical examination despite complaining of difficulties using his right upper
extremity. Tr. 22 (citing Tr. 421–30).
Relatedly, Mr. Cole argues that the objective medical evidence supported,
rather than undercut, his allegations. Pl.’s Br. 12–16. In support of this argument,
Mr. Cole cites progress notes that show he continued to experience significant
issues despite participating in ten physical therapy sessions. Pl.’s Br. 13–14 (citing

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Tr. 385). The ALJ, however, explicitly mentioned this evidence in her decision:
“Even with physical therapy, [Mr. Cole] continued to demonstrate significant range
of motion limitations, weakness and instability of the cervical spine, postural
deficits, radicular symptoms, decreased range of motion and pain of the right
shoulder.” Tr. 18 (citing Tr. 380–420, 421–30). And the ALJ included significant
exertional and non-exertional restrictions in her RFC assessment. See Tr. 21.
Crucially, Mr. Cole does not explain why that RFC assessment does not adequately
account for his demonstrated limitations.
Finally, Mr. Cole asserts that the ALJ ignored evidence that supported his
allegations, namely a survey and a questionnaire he completed in January 2016 for
physical therapy. Pl.’s Br. 14–17 (citing Tr. 392–95). The ALJ’s failure to specifically
mention these records is not grounds for reversal. For one, ALJs are not required “to
address every piece of evidence or testimony in the record.” Zurawski, 245 F.3d at
889. More importantly, the complaints Mr. Cole made in those records are largely
duplicative of allegations contained elsewhere in the record that the ALJ did
mention and consider. The ALJ therefore did not, as Mr. Cole suggests, ignore
entire lines of evidence favorable to him.
In sum, the Court finds that the ALJ’s decision to partially discredit Mr.
Cole’s alleged symptoms was not so lacking in explanation or support that it is
patently wrong.

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2. Whether the ALJ erred in weighing the opinions of Mr.
Cole’s treating nurse
Mary Lynn Deli, an advanced practice nurse, began treating Mr. Cole in early
2016. The record contains treatment notes from only two visits, on January 11 and
February 8. During those visits, Mr. Cole complained about constant pain in his
neck and right arm that was aggravated by activity and that did not improve with
medication. Tr. 425, 428. On physical examination, Mr. Cole demonstrated
tenderness in his cervical spine and a positive Spurling’s test. Tr. 426, 429.
However, he had a normal gait and motor strength. Ms. Deli noted the following
diagnoses: cervical disc disorder with radiculopathy, post-laminectomy syndrome,
radiculopathy, and cervicalgia. Tr. 426, 429. She increased Mr. Cole’s hydrocodone
dose following the February 8 visit so that he could participate in physical therapy.
Tr. 426. Ms. Deli further noted that, because Mr. Cole had failed conservative care
and was functionally impaired, an epidural steroid injection was warranted. Tr.
426.
On May 11, 2016, Ms. Deli completed a Medical Source Statement regarding
Mr. Cole’s ability to do work-related activities. Ms. Deli opined that Mr. Cole could
lift no more than ten pounds at a time, required a sit/stand/walk option, could sit for
two or three hours during a workday, and could stand or walk for one hour per
workday. Tr. 432. Ms. Deli further opined that Mr. Cole could only occasionally
(very little to one-third of the time) stoop, crouch, or kneel and could never reach
overhead with his right arm. Tr. 432–33. According to Ms. Deli, Mr. Cole would
need two to three unscheduled breaks during each workday; would likely be absent
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from work two days per month due to his condition, symptoms, or treatment; would
be off-task fifteen percent of the day due to his impairments; could work for only
four to five hours per day; and could use a cane to stand or ambulate as needed. Tr.
433.
The ALJ gave Ms. Deli’s opinions “partial weight” because she did not explain
the bases for her opinions or refer to any treatment note in support of her
conclusions. Tr. 25. The ALJ further reasoned that Ms. Deli’s opinions were not
consistent with other evidence in the record, including physical therapy notes that
showed a normal gait, no concern about absences, and improvement with mobility
in the right arm. See Tr. 25 (citing Tr. 383, 411). Also, in the ALJ’s view, the record
did not support Ms. Deli’s recommendation that Mr. Cole be allowed to use a cane
as needed. Tr. 25 (citing Tr. 421–30).
Mr. Cole first argues that the ALJ erred in failing to assign controlling
weight to Ms. Deli’s opinions. Pl.’s Br. 18–21; Pl.’s Reply 4–5. If certain criteria are
met, the ALJ must give controlling weight to a treating source’s medical opinion.
See 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); Social Security Ruling No. 96-2p,
1996 SSR LEXIS 9, at *3–4 (July 2, 1996); Punzio v. Astrue, 630 F.3d 704, 710 (7th
Cir. 2011); Campbell v. Astrue, 627 F.3d 299, 306 (7th Cir. 2010). But only
“acceptable medical sources” can provide medical opinions that may be entitled to
controlling weight. See Social Security Ruling No. 06-3p, 2006 SSR LEXIS 5, at *3–
4 (Jan. 1, 2006) (citing 20 C.F.R. §§ 404.1527(a)(2), (d) and 416.927(a)(2), (d)). At the
time of the ALJ’s decision, the opinion of an advanced nurse practitioner was not an

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opinion from an “acceptable medical source.” See 20 C.F.R. §§ 404.1502(a),
416.902(a); SSR No. 06-3p, 2006 SSR LEXIS 5, at *2–5; see also Angeles v. Astrue,
No. 08-3194, 2009 U.S. Dist. LEXIS 88891, at *25–28 (C.D. Ill. Sept. 23, 2009)
(finding that the opinion of an advanced nurse practitioner is not entitled to
controlling weight because an advanced nurse practitioner is not a “treating
source”). Thus, the ALJ did not err in failing to assign controlling weight to Ms.
Deli’s opinions.2
Nevertheless, the opinion of an advanced nurse practitioner remains
“important and should be evaluated on key issues such as impairment severity and
functional effects.” SSR No. 06-3p, 2006 SSR LEXIS 5, at *8. In evaluating opinion
evidence from advanced nurse practitioners, the ALJ can apply the same factors
used to evaluate opinions from acceptable medical sources. Id. at *10–11 (citing 20
C.F.R. §§ 404.1527(d), 416.927(d)).3 “Not every factor for weighing opinion evidence
will apply in every case.” SSR No. 06-3p, 2006 SSR LEXIS 5, at *12. Rather, the
ALJ “generally should explain the weight given to opinions from [advanced nurse
practitioners], or otherwise ensure that the discussion of the evidence in the . . .
In early 2017, the SSA eliminated the “treating source rule.” See Revisions to
Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844 (Jan. 18,
2017). The SSA also added advanced nurse practitioners to the list of acceptable
medical sources. See §§ 404.1502(a)(7), 416.902(a)(7). However, those revisions do
not apply here because Mr. Cole’s claim was filed before March 27, 2017. See id.
2

These factors include: the examining relationship between the individual and the
source; the treatment relationship between the individual and the source (including
the length, nature, and extent of the treatment relationship and the frequency of
examination); whether the opinion is supported by relevant evidence; the opinion’s
consistency with the record as a whole; whether the source is a specialist; and any
other relevant factors. See 20 C.F.R. §§ 404.1527(c), 416.927(c).
3

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decision allows a . . . subsequent reviewer to follow [her] reasoning, when such
opinions may have an effect on the outcome of the case.” Id. at *15–16.
Mr. Cole argues that the ALJ did not sufficiently justify the weight she
assigned to Ms. Deli’s opinions. Pl.’s Br. 19–21; Pl.’s Reply 4–5. The Court
respectfully disagrees. First, the ALJ accurately noted that Ms. Deli did not explain
her opinions or support them with references to any treatment notes. Both are valid
reasons for discounting medical opinions. See 20 C.F.R. §§ 404.1527(c)(3),
416.927(c)(3). Second, the ALJ reasonably questioned Ms. Deli’s recommendation
that Mr. Cole be allowed to use a cane as needed, given that her own treatment
notes showed that Mr. Cole walked with a normal gait upon examination. See, e.g.,
Tr. 426, 429. Mr. Cole has not pointed to any objective evidence in the record that
supports his need to use a cane.
Third, the ALJ did not err in discussing Mr. Cole’s physical therapy notes.
Those notes reflect that, while Mr. Cole still had limitations, he did show some
improvement in his ability to move his right arm. See Tr. 383, 411. The ALJ did not
suggest that all of Mr. Cole’s limitations were alleviated with physical therapy or
ignore entire lines of evidence favorable to him—indeed, she specifically noted that
Mr. Cole “continued to demonstrate significant range of motion limitations,
weakness and instability of the cervical spine, postural deficits, radicular
symptoms, decreased range of motion and pain of the right shoulder.” Tr. 18 (citing
Tr. 380–420, 421–30). Rather, the ALJ reasonably determined that the record did
not support the degree of limitations opined by Ms. Deli. See 20 C.F.R.

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§§ 404.1527(c)(4), 416.927(c)(4) (“Generally, the more consistent a medical opinion is
with the record as a whole, the more weight we will give to that medical opinion.”).
And the ALJ did include significant exertional and non-exertional limitations in her
RFC assessment.
Finally, the ALJ reasonably found that Ms. Deli did not explain the need for
frequent absences and that this concern was not supported by the record. Mr. Cole
was discharged from physical therapy because he missed multiple appointments
and did not attempt to reschedule. Tr. 383. He claimed during the administrative
hearing that his doctors advised him to stop going to physical therapy. Tr. 40–41.
That assertion, however, is not supported by any other evidence in the record. See,
e.g., Tr. 357–61, 423–30. Moreover, Mr. Cole’s purported explanation for
abandoning physical therapy is not inconsistent with the ALJ’s determination that
“there is no evidence of missing appointments due to medical reasons.” Tr. 25. An
ALJ may validly give less weight to an unsupported opinion that is inconsistent
with the record. See §§ 404.1527(c)(3) & (4), 416.927(c)(3) & (4).
In sum, the Court finds that the ALJ sufficiently explained her decision to
give only partial weight to Ms. Deli’s opinions.
IV.

Conclusion
For all the foregoing reasons, the Court finds that the ALJ did not commit

reversible error in finding that Mr. Cole was not disabled as of February 2013. The
Court therefore will affirm the ALJ’s decision denying Mr. Cole’s claim for Social
Security benefits.

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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.
Dated at Milwaukee, Wisconsin, this 14th day of September, 2018.
BY THE COURT:
s/ David E. Jones
DAVID E. JONES
United States Magistrate Judge

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