Fitzgerald, Matthew v. Colvin, Carolyn

Filing 15

OPINION AND ORDER affirming Commissioner decision regarding Social Security benefits RE: 10 Social Security Transcript. Signed by District Judge Barbara B. Crabb on 2/4/16. (jat)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - MATTHEW T. FITZGERALD,
OPINION AND ORDER
Plaintiff,
15-cv-135-bbc
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - This is plaintiff Matthew T. Fitzgerald’s second appeal relating to his claim under the
Social Security Act, 42 U.S.C. § 405(g), for disability benefits and supplemental security
income. Plaintiff alleges that he has been disabled since July 1, 2010 as a result of a number
of impairments, including degenerative disc disease, coronary artery disease, pulmonary
fibrosis and lateral epicondylitis of the left elbow. On June 7, 2013, he appealed an October
3, 2011 administrative decision denying him benefits, arguing that the administrative law
judge had made a number of errors, including improperly assessing his credibility and the
opinion of his treating physician and failing to resolve a conflict in the vocational expert’s
testimony. Dkt. #1, case no. 13-cv-405-bbc. Because I agreed with most of plaintiff’s
arguments, I remanded the case for further proceedings. Dkt. #20, case no. 13-cv-405-bbc.
On remand, the administrative law judge held a second hearing and received
additional medical evidence. Although the administrative law judge determined that plaintiff

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became disabled when he turned 50 years old on October 9, 2014, he found that before that
time, plaintiff could have performed work as a machine tender, office worker and video
surveillance monitor. AR 839-40. In the current appeal, plaintiff argues that he is entitled
to an award of benefits for the period July 1, 2010 to October 8, 2014, because the
administrative law judge erred by (1) making an improper credibility assessment; (2) giving
inadequate weight to the opinion of plaintiff’s treating physician; (3) failing to resolve
conflicts between the Dictionary of Occupational Titles and the vocational expert’s
testimony; and (4) relying on vague and unsupported vocational expert testimony.
For the reasons discussed below, I conclude that the administrative law judge gave an
adequate explanation of his findings and provided good reasons for the findings, which are
supported by substantial evidence in the record.

Accordingly, I am affirming the

administrative law judge’s decision.

RECORD FACTS
A. Medical Record
Plaintiff Matthew Fitzgerald was born on October 9, 1964, making him 50 years old
at the time of his most recent administrative hearing on October 16, 2014. AR 882. In July
and August 2010, he began experiencing sharp chest pain and a dull steady pain that
radiated into his right arm. AR 349. In September 2010, he also complained of pain
between his shoulder blades in his upper back that radiated to his left elbow and caused
numbness and tingling in his left fingers. AR 331-32, 335. Plaintiff saw Dr. Marty Mozena

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on September 29, 2010 for an initial appointment related to his chest and back pain. AR
324. He had tenderness to palpation in his cervical and thoracic spine and a decreased range
of motion in his neck upon rotation to the left and flexion. AR 326. Dr. Mozena prescribed
pain medications and ordered a magnetic resonance imaging study. Id. Plaintiff remained
in significant pain and reported on October 4, 2010, that the pain medications were
ineffective. AR 320.
Plaintiff returned to Dr. Mozena for a followup visit on October 15, 2010. AR 312.
He had tenderness to palpation in the lower cervical vertebrae and was unable to abduct past
80 degrees with decreased hand grip on the left and difficulty touching his thumb to each
finger tip because of pain in his elbow. AR 312-14. Dr. Mozena continued him on pain
medications and referred him to Dr. Dopf, a spinal specialist. Id. Three days later, plaintiff
spoke with someone in Dr. Dopf’s office, who told him that “if” a patient needed spinal
fusion, he would have to be nicotine free in order to be put on the surgical schedule. AR
309. Plaintiff asked for a referral to a different specialist because he said that he was unable
to quit smoking as a result of stress. AR 304, 307. Dr. Mozena explained that all surgeons
would recommend that he quit smoking, but he encouraged plaintiff to keep his
appointment with Dr. Dopf to see whether he would benefit from surgery. AR 300, 306.
On November 2, 2010, plaintiff saw Dr. Eugene Kaji, a cardiovascular specialist, who
diagnosed “likely coronary artery disease” following an abnormal stress test. AR 273-79.
A physical examination showed that plaintiff had full range of motion in his large joints and
full strength (five out of five) in his upper and lower extremities. AR 275. The following

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day, plaintiff underwent outpatient cardiac catheterization. The diagnosis was two-vessel
occlusive coronary artery disease. A bare metal stent was implanted to the left circumflex.
AR 367-68, 387-88. Two more stents were placed on November 11, 2010. AR 409-10,
457.
On November 24, 2010, plaintiff saw a physician’s assistant in Dr. Dopf’s office who
noted that plaintiff described pain between his shoulder blades, under his left arm and into
the triceps and elbow. Plaintiff also had numbness and tingling from his left elbow to his
middle finger. A physical exam showed muscle atrophy and strength of four out of five in
plaintiff’s left triceps. Although plaintiff experienced some pain relief with medications, his
symptoms had not yet subsided. The physician’s assistant noted that plaintiff had not
sought other forms of conservative treatment because he was dealing with other health
problems. AR 457. An October 8, 2010 magnetic resonance imaging study showed a large
intraforaminal disc herniation at C6-C7 impinging on the C7 nerve root, which the
physician’s assistant noted matched up with plaintiff’s symptoms and physical exam. AR
458. Plaintiff was not a candidate for surgery or epidural or nerve root injections at the time
of this appointment because he was on Plavix until the end of January 2011. However, the
physician’s assistant noted the likelihood that he would be a good candidate for surgical
decompression of his cervical spine if “nonoperative management” failed. If cervical fusion
were necessary, plaintiff would have to be nicotine free. Plaintiff was referred for physical
therapy and an increased dose of gabapentin, which is used to treat nerve pain. AR 458.
On December 29, 2010, plaintiff saw a physical therapist and reported that he had

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pain in his upper back between the shoulder blades but that his elbow had not been
bothering him much. The physical therapist noted that plaintiff’s cervical range of motion
and extension were painful and restricted. AR 525.
On January 12, 2011, plaintiff returned to Dr. Dopf’s office for a followup
appointment for his neck and left arm pain. AR 577. Plaintiff expressed his interest in
having surgery after he finished taking Plavix for his cardiac condition at the end of January
2011.

Although he was still smoking, he planned to quit. AR 577-78.

He was not

interested in steroid injections. Plaintiff was told that because he had long-term symptoms
and weakness, he might have permanent nerve damage. AR 578.
Also in January 2011, plaintiff saw Dr. Mozena for a followup visit. AR 583.
Plaintiff reported continuing upper back pain that worsened in the afternoon when the
morphine wore off and some fatigue and lack of energy caused by depression. Although
plaintiff stated that he experienced occasional episodes of chest pain twice a week with
increased exertion, his pain was gradually getting better and responding well to medication.
His shortness of breath had improved and his pulmonary function tests were essentially
normal.

Plaintiff reported missing some cardiology appointments because of financial

difficulties. AR 583-84.
At a February 14, 2011 cardiology visit, plaintiff reported occasional chest tightness
(particularly when under stress) and pain in his upper back. AR 806. He stated that his
problems with shortness of breath had improved somewhat, but the doctor stated that his
functional capacity was below normal for his age because of deconditioning and limitations

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from his lower back pain. Dkt. #10-4, AR 809. Plaintiff was told to exercise and modify
his diet. AR 807.
On February 28, 2011, Dr. Dopf told plaintiff that even though he continued to have
pain in his left neck, upper back and left arm, he could not have surgery until he was smoke
free. Dr. Dopf expressed his doubts that plaintiff would be able to remain nicotine free. AR
604-06.
On May 23, 2011, plaintiff reported to a psychologist that his neck and arm pain had
ranged from a two to a nine out of ten in the past month and that it increased with almost
any position or physical activity. He also reported that his medication caused headaches
that lasted several hours. AR 803.
On June 15, 2011, plaintiff saw a nurse for increased pain in his left shoulder and
neck area. Although he stated that his pain had been controlled for several months with
morphine and vicodin, the pain became worse a week before the appointment. AR 640. Dr.
Mozena increased the dosage of plaintiff’s medications and referred him for a steroid
injection. AR 641.
Dr. Mozena completed a residual functional capacity questionnaire for plaintiff on
August 31, 2011. AR 789-92. He noted that plaintiff had upper back, neck and radicular
pain that limited motion in his left shoulder, arm and hand. Specifically, Dr. Mozena
assessed the following limitations:
•

Sit and stand for only four hours at a time.

•

In an eight-hour workday, sit for six hours and stand and walk for four

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hours.
•

The need to shift positions at will.

•

Lift up to 10 pounds occasionally.

•

Significant limitations in grasping, twisting, turning objects, fine
manipulation and reaching on the left side.

•

Absent from work more than twice a month.

At an October 11, 2011 urgent care visit for tooth pain, plaintiff reported that his
pain medication was not as effective as it had been in the past for his upper back and neck
pain. He stated that a nerve block in his neck gave temporary relief for his left elbow and
forearm pain and numbness. Plaintiff was waiting for a second opinion regarding spinal
fusion surgery because he was still smoking. AR 1142. Later that month, on October 24,
2011, plaintiff reported to Dr. Mozena that his neck pain was “stable” and “controlled” with
his current medications. AR 1143. Although plaintiff stated that he would like to pursue
surgical correction, Dr. Mozena noted that it was not an option until he was smoke free. Id.
During a March 7, 2012 office visit with Dr. William Petersen, plaintiff denied
extreme fatigue but stated that he had mild nausea after taking his evening medications. AR
1145. He reported being off cigarettes for four weeks but the doctor noted a strong odor of
tobacco, which plaintiff attributed to second hand smoke from his roommate. AR 1145-46.

On September 12, 2012, plaintiff saw Dr. Mozena for pressure in the left side of his
chest, which was different from the pain he had before the stents were placed. Dr. Mozena
noted that plaintiff was still smoking and was deconditioned; he could walk only 100 yards

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before having to stop for shortness of breath and fatigue. On examination, Dr. Mozena
found that plaintiff had a full range of motion in his neck to the left and a slight reduction
in rotation to the right, but he was able to extend and flex his neck fully. Plaintiff’s strength
in his upper extremities was a five out of five. AR 1147-48.
Plaintiff saw Dr. Mozena again almost a year later, on August 22, 2013. Plaintiff
reported that for the past two years, his symptoms were well-controlled with pain
medications and a steroid injection but that his neck and arm pain had increased over the
past several months. He also reported having cramping in his left hand on two occasions and
an ache in the left side of his rib cage. Plaintiff attributed the increased pain to his part-time
work at a rental car agency. AR 1153-54. Plaintiff stated that he declined surgery because
he did not wish to pursue it. AR 1153. A physical examination showed that plaintiff had
“exquisite tenderness” in his thoracic back, decreased range of motion in his shoulders and
reduced rotation of the neck to the left. Dr. Mozena recommended physical therapy and
another steroid injection for plaintiff’s neck and back pain and refilled his vicodin
prescription for breakthrough pain. AR 1155. Dr. Mozena noted that it was likely that his
symptoms would improve with these measures. AR 1156.
On March 17, 2014, plaintiff reported to Dr. Mozena that he had been experiencing
pain in his right hand, tail bone and left shoulder since falling down a flight of stairs at
O’Hare airport in February 2014. AR 1156. A May 2014 magnetic resonance imaging
study of plaintiff’s left shoulder showed acromioclavicular capsular edema of the AC joint
with possible indication of a low-grade AC separation injury and partial thickness tear of the

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supraspinatus tendon and subscapularis tendon. AR 1158, 1171.
On August 1, 2014, plaintiff reported to Dr. Mozena that he continued to have pain
in his neck and upper back but that it was controlled with multiple pain relievers, including
long-acting morphine and vicodin for breakthrough pain. Plaintiff denied having side effects,
such as constipation and sedation, from his pain relievers but stated that he felt depressed,
was fatigued and had difficulty concentrating. Plaintiff told Dr. Mozena that he had been
approved for disability and asked him to complete a form for his attorney. AR 1159. A
physical examination showed that plaintiff had full range of motion in his shoulders and
could rotate his neck to the left and right, but pain limited abduction in his shoulders and
his ability to extend and flex his neck. AR 1161.
On August 31, 2014, Dr. Mozena completed a second residual functional capacity
questionnaire, noting that plaintiff’s neck pain was “stable” and radiated into his left
shoulder, upper back and left elbow. AR 1214. Dr. Mozena wrote that plaintiff was limited
in the following respects:

lift 10 pounds frequently but not more than 20 pounds

occasionally; not sit without the option to stand or walk at will; stand and walk up to four
hours in an eight-hour workday; use his left hands and fingers only 50 percent of the
workday; not perform any reaching with his left arm; miss three days of work per month;
and twist, crouch, squat and climb ladders only occasionally. AR 1215-17. Although the
questionnaire asked about side effects from pain medication and fatigue, Dr. Mozena did
not note any such problems.
An unsigned Department of Vocational Rehabilitation job development plan report

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dated September 10, 2014, notes that plaintiff needs the ability to move when pain dictates,
probably could not work more than 10 to 20 hours per week on a consistent basis and has
memory problems and limited patience due to pain medications. AR 1107.

B. Plaintiff’s Testimony
At the hearing held on September 22, 2011, plaintiff testified that he could not work
because he either has pain in his back and arm or takes his medications and cannot stay
awake for eight hours. He feels pain after sitting for 15 to 20 minutes. AR 44. He gets tired
two hours after taking morphine and gabapentin and sleeps three or four times a day on
those medications. Plaintiff also stated that he gets winded easily from his heart issues and
that the medications make him unable to concentrate or remember things. AR 45-46.
On October 16, 2014, plaintiff testified that his biggest issues in 2010 were his neck
and arm pain and “getting winded” because of his heart problems. The shortness of breath
improved but the medications he takes for pain make him feel “knocked out” every day. For
the first seven months he was on pain medications, he had to sleep every few hours. Plaintiff
testified that he learned to take his medications at different times so that he could stay
awake most of the day, but he started having memory problems. AR 898. Plaintiff said that
he can lift very light items and reach occasionally with his left arm but he tries not to use it
at all. AR 903. Although surgery is a possibility, three different doctors have told him that
it may not be worth it because he may have only a 50 percent chance of getting better. AR
905-06.

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OPINION
A. Credibility
The administrative law judge found that plaintiff had the residual functional capacity
to perform sedentary work with the following limitations: the option to sit and stand at will;
occasional rotation, flexion and extension of the neck; occasional reaching, handling and
fingering on the left side; simple routine and repetitive tasks; occasional interaction with
coworkers; and being off task 10 percent of the day in addition to regular breaks. AR 833.
Plaintiff testified that he stays awake for only a few hours at a time, sleeps three or four
times a day, has “memory issues” and would be late for work and miss work several times
a month. The administrative law judge did not find plaintiff’s allegations credible for the
following reasons:
1. Plaintiff had failed to show up for or cancelled several appointments.
2. Plaintiff had not had the type of treatment or physical examination results
one would expect given the alleged severity of his neck and left arm pain.
3. Plaintiff was able to go on vacation in July 2011 and March 2014.
4. With respect to plaintiff’s coronary artery disease and pulmonary fibrosis,
the record failed to show that plaintiff suffered from any significant fatigue for
more than a few months after surgery or from other symptoms related to his
coronary artery disease or pulmonary fibrosis.
5. The record did not show that plaintiff complained of or experienced any
side effects from his medications.
AR 834-36.

Although I agree with plaintiff that the first three reasons given by the

administrative law judge are not well-founded, the administrative law judge reasonably

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determined that the medical record does not support plaintiff’s claims of disabling arm and
neck pain, extreme fatigue or other side effects associated with his medications (reasons four
and five).
Although the administrative law judge criticized plaintiff for missing several
appointments and not seeking more aggressive treatment for his neck and arm pain, he
improperly ignored plaintiff’s explanations for these occurrences. SSR 96-7P, 1996 WL
374186, at *7 (ALJs must consider “any explanations that the individual may provide, or
other information in the case record, that may explain infrequent or irregular medical visits
or failure to seek medical treatment”); Beardsley v. Colvin, 758 F.3d 834, 840 (7th Cir.
2014) (remanding to agency where ALJ made no attempt to determine reason for
conservative treatment). Plaintiff told Dr. Mozena in January 2011 that he missed some
cardiology appointments because of “financial trouble.” AR 584. Craft v. Astrue, 539 F.3d
668, 679 (7th Cir. 2008) (ALJ should consider claimant’s “inability to pay for regular
treatment and medicine”). In addition, many of the appointments that plaintiff missed were
for gastrointestinal problems and not for problems related to his coronary artery disease,
pulmonary fibrosis or neck and arm pain. AR 609.
The administrative law judge noted that plaintiff did not seek even conservative
treatment for the first five months after the onset of his neck, arm and elbow pain.
However, the record makes clear that during that time period, plaintiff could not receive
steroid injections or undergo surgery because he was recovering from the placement of the
stents and taking Plavix. AR 458. After he finished taking Plavix, plaintiff agreed to receive

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a steroid injection, which gave him good relief. Plaintiff has not been able to undergo
surgery because he is unable to stop smoking. At the 2014 hearing, plaintiff downplayed his
smoking and said the “biggest issue” was that he was not sure that surgery would be effective.
AR 907. The administrative law judge faults plaintiff for making inconsistent statements
about the reason he did not undergo surgery on his spine, pointing out that he continues to
smoke even though he was told he needed to quit before he could undergo surgery. The fact
that plaintiff may have more than one reason for not pursuing surgery does not necessarily
mean that he does not have a good reason for not pursuing surgery or that he was lying
about his reason. There is some evidence that plaintiff was told that even with surgery, his
nerve damage may be permanent. AR 578, 905-06. Also, as I found in my order reversing
the administrative law judge’s 2011 decision, to the extent that the administrative law judge
has concluded that plaintiff’s symptoms cannot be as bad as he says they are if he refuses to
do what it takes to get surgery (i.e., quit smoking), that is not a reliable basis on which to
rest a credibility determination. Shramek v. Apfel, 226 F.3d 809, 813 (7th Cir. 2000).
I also agree with plaintiff that it was improper for the administrative law judge to
draw a negative inference from his ability to travel to Chicago on two occasions. Although
the administrative law judge wrote that plaintiff “went on a vacation since the alleged onset
date,” AR 836, plaintiff testified that he traveled to Chicago in 2014 to visit his brother who
was dying of cancer. AR 898. (The record is silent about the purpose of plaintiff’s 2011 trip
to Chicago.) In any event, the ability to travel from Wisconsin to Chicago twice in a threeyear period does not amount to substantial evidence showing that plaintiff can work or that

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his subjective complaints are incredible. Lipke v. Astrue, 575 F. Supp. 2d 970, 981 (W.D.
Wis. 2007). See also Howard v. Heckler, 782 F.2d 1484, 1488 (9th Cir.1986) (ability to
engage in periodic, restricted travel does not diminish credibility of pain testimony).
Although the administrative law judge may have erred in drawing a negative inference
from plaintiff’s missed appointments, ability to travel and lack of certain types of treatment,
his credibility determination was not “patently wrong.” Jones v. Astrue, 623 F.3d 1155,
1162 (7th Cir. 2010); Simila v. Astrue, 573 F.3d 503, 517 (7th Cir. 2009) (credibility
determination need not be flawless); Elder v. Astrue, 529 F.3d 408, 413-14 (7th Cir. 2008)
(“It is only when the [administrative law judge’s] determination lacks any explanation or
support that we will declare it to be patently wrong.”). See also Schreiber v. Colvin, 519
Fed. Appx. 951, 961 (7th Cir. 2013) (unpublished decision) (credibility determination not
“patently wrong” when court disagreed with one factor in ALJ’s credibility finding but found
ALJ “did not place undue weight” on this factor and “specified several valid reasons for
finding [claimant] not credible”).
Plaintiff says little to contradict the administrative law judge’s finding that there is
no evidence that he experienced continuing symptoms of coronary artery disease or
pulmonary fibrosis for more than a few months after his surgery. Although plaintiff notes
that he reported in January 2011 that he had “occasional episodes of chest pain” twice a
week, that progress note also states that plaintiff reported that his chest pain “seems to be
gradually getting better since last visit” and that “SL nitro” provides good relief. Id. AR
584. The record shows that plaintiff did not complain of or seek treatment for chest pain

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after February 14, 2011, when he admitted that his shortness of breath had improved and
stated that he was having occasional chest pain only with heavy exertion.
As the administrative law judge noted, plaintiff responded well to the placement of
the stents and denied needing pain medications for his cardiac condition on November 12,
2010. AR 433. In a October 19, 2010 note, Dr. Mozena confirmed that plaintiff was not
working because of his neck and arm pain and made no mention of plaintiff’s heart
condition or chest pain. AR 301. His January 2011 pulmonary function test was normal,
AR 583-84, and in September 2012, Dr. Mozena attributed plaintiff’s shortness of breath
to deconditioning. AR 1145-48. Although plaintiff reported “chest pressure” in September
12, 2012, he stated that it was different from his previous pain. It was Mozena’s opinion
that the sensation was most likely associated with plaintiff’s spinal problems and not his
coronary artery disease.

AR 1147-48.

Accordingly, the administrative law judge’s

conclusion that plaintiff did not have disabling symptoms associated with his coronary artery
disease and pulmonary fibrosis a few months after his cardiac surgery is well-founded.
The administrative law judge is also correct when he notes that plaintiff reported on
more than a few occasions before October 2014, that his neck and arm pain was controlled
with medications and injections. Although plaintiff had a few flareups of pain between the
end of 2010 and 2014, he experienced relief when Dr. Mozena adjusted his pain
medications. For example, on November 29, 2010, plaintiff reported that his pain was
tolerable during the day but that he woke at night with “pain episodes.” AR 550. In
response, Dr. Mozena prescribed long-acting morphine, AR 552, which plaintiff later

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reported as being effective. On June 15, 2011, plaintiff stated that his pain had been
controlled for “several months” with morphine and vicodin, although the pain became worse
a week before the appointment. AR 640. Dr. Mozena again increased the dosage of
plaintiff’s medications and referred him for a steroid injection. AR 641. When plaintiff saw
Dr. Mozena on October 24, 2011, he reported that his neck pain was “stable” and
“controlled” with his current medications. AR 1143.
Plaintiff had only a few visits to the doctor during the next two years and did not
report having pain in his neck or arm. On August 22, 2013, he confirmed that his symptoms
had been well-controlled with pain medications and a steroid injection for the past two years,
even though his neck and arm pain had increased over the past several months while he was
working at a rental car agency. AR 1145-55. Almost a year later, on August 1, 2014,
plaintiff reported to Dr. Mozena that his neck and upper back pain was controlled with
multiple pain relievers, including long-acting morphine and vicodin for breakthrough pain.
AR 1159. These progress reports are consistent with plaintiff’s testimony in 2011 that he
either had to take pain medications or have pain in his back and arm, which suggests that
his pain is controlled with medication. AR 44. (I address below plaintiff’s contention that
his pain medications caused him severe side effects.)
The administrative law judge also correctly noted that except on a few occasions,
plaintiff’s physical examinations have shown that he has intact sensation, reflexes and motor
strength in both extremities. Plaintiff disputes this and points to records from 2010 showing
that he had radiculopathy, muscle weakness and atrophy on the left, decreased hand grip and

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difficulty abducting his shoulders (moving them away from the body) past 90 degrees.
Although it is clear that plaintiff has limitations in his left upper extremity, which the
administrative law judge accounted for in his residual functional capacity assessment, the
medical record does not support plaintiff’s claims that he has little to no use of his left arm.
A November 2, 2010 physical examination showed that plaintiff had full range of motion
in his large joints and full strength (five out of five) in all of his upper and lower extremities,
AR 275, and a November 24, 2010 physical examination showed plaintiff had strength of
four out of five in his left triceps. AR 457. On September 12, 2012, Dr. Mozena found that
plaintiff had full strength in his upper extremities. AR 1147-48. Although plaintiff had
limited abduction on August 1, 2014, he had a full range of motion in his shoulders. AR
1161.
Plaintiff’s biggest complaint seems to be that his medications cause him extreme
fatigue and memory problems. Contrary to plaintiff’s assertions, the administrative law
judge addressed these problems and considered the side effects of plaintiff’s medications.
He found that plaintiff did not report any disabling side effects to his treating physicians,
stated that he had only “some fatigue” in January 2011, AR 583-84, and denied having
extreme fatigue in March 2012. AR 1145. The medical record shows no evidence of the
severe fatigue and memory problems that plaintiff describes.

On August 1, 2014, he

reported feeling depressed, being fatigued and having difficulty concentrating; however, he
specifically denied having side effects from his pain relievers. AR 1159. Although Dr.
Mozena wrote that “opiates can cause sedation” on an August 2011 functional capacity

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questionnaire, he did not note that plaintiff was experiencing any such side effects and did
not list fatigue as one of plaintiff’s symptoms, even though the form specifically asked about
it. AR 789-90. Dr. Mozena also did not mention fatigue or side effects on the 2014
questionnaire that he completed. AR 1214-17. Further, at the 2014 hearing, plaintiff
testified that his fatigue lasted only for the first seven months that he was on pain
medications, after which he learned to take his medications at a different time of day to
prevent this from happening. AR 898. Although plaintiff and other witnesses testified
about memory problems that plaintiff experienced while on pain medications, the
administrative law judge noted correctly that plaintiff had not claimed disability on the basis
of any mental impairment or cognitive difficulty and none of his physicians assessed any
limitations in these areas.
In sum, although the administrative law judge’s credibility determination is not
perfect, he gave well-founded reasons supported by substantial evidence in the record for his
conclusion that plaintiff’s symptoms were not as severe as he claimed.

B. Treating Physician
It is a well-settled rule that a treating physician’s medical opinion is entitled to
controlling weight if it is supported by objective medical evidence and consistent with other
substantial evidence in the record. 20 C.F.R. § 404.1527(c)(2); Roddy v. Astrue, 705 F.3d
631, 636 (7th Cir. 2013); Skarbek v. Barnhart, 390 F.3d 500, 503 (7th Cir. 2004).
Although an administrative law judge is not required to afford a treating physician’s opinion

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controlling weight, he is required to provide a sound explanation for rejecting it. Roddy, 705
F.3d at 636. See also Beardsley v. Colvin, 758 F.3d 834, 839 (7th Cir. 2014) (“The problem
in this case is that the ALJ did not provide a valid explanation for preferring the record
reviewer's analysis over that of the agency’s examining doctor.”).
On August 31, 2011, Dr. Mozena found plaintiff capable of sedentary level work with
significant limitations in grasping, twisting, turning objects, fine manipulation and reaching
on the left side. Dr. Mozena also found that plaintiff needed the option to shift positions
at will and miss work more than twice a month. Three years later, on August 31, 2014, Dr.
Mozena reached a similar conclusion regarding plaintiff’s abilities, except that he specified
that plaintiff could use his left hands and fingers only 50 percent of the workday, could not
perform any reaching with his left arm and would miss three days of work per month. Dr.
Mozena also added the limitation that plaintiff could twist, crouch, squat and climb ladders
only occasionally.
Although the administrative law judge limited plaintiff to occasional reaching,
handling and fingering on the left side, he declined to adopt more significant limitations in
these areas as a result of Dr. Mozena’s opinion and did not adopt the physician’s restrictions
related to plaintiff’s absences from work and limited ability to twist, crouch, squat and climb.
The administrative law judge gave several reasons for not crediting Dr. Mozena’s opinion in
full. First, he explained that Dr. Mozena had seen plaintiff only one or two times a year
since 2010 and relied only on plaintiff’s subjective opinions that he had to miss work and
was limited in his ability to reach, twist, crouch, squat or climb ladders. Plaintiff says very

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little to dispute this finding, arguing that all progress notes contain “a component of
subjective complaints” and that Dr. Mozena made some findings on a few occasions about
his neck and left arm and hand after physically examining him. Dkt. #12 at 27. However,
as the administrative law judge pointed out, most of the medical progress notes related to
plaintiff’s neck and arm (as discussed above) reported that plaintiff had full strength and
good range of motion in his shoulders and upper extremities.
Plaintiff faults the administrative law judge for not explaining why he found that
plaintiff could not perform any overhead reaching in 2011 but concluded in 2014 that he
could perform occasional reaching on the left side. He argues that neither limitation is
consistent with the fact that a September 12, 2012 physical examination showed that
plaintiff had pain with “abduction after 90 degrees.” AR 1148. With respect to reaching,
the administrative law judge states that he “added additional limitations in the residual
functional capacity, including . . . expanding the manipulative limitation from occasional .
. . overhead reaching (with the left arm/hand) to also including reaching (in all directions).”
AR 836. As plaintiff notes, in his 2011 decision, the administrative law judge actually found
that plaintiff was precluded from overhead reaching with the left non-dominant arm. AR
25. However, it seems that the administrative law judge believes that limiting plaintiff to
occasional reaching in all directions is a more restrictive limitation than finding that he is
not capable of any overhead reaching. Plaintiff does not offer any reason why this would not
be true. In addition, Dr. Mozena did not find that plaintiff was precluded from overhead
reaching until August 2014. In his August 31, 2011 opinion, Dr. Mozena stated only that

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plaintiff had “significant limitations” in reaching on the left side. The administrative law
judge’s most recent residual functional capacity assessment is consistent with that finding.
Although there is some evidence in the record that plaintiff had difficulty abducting (lateral
lifting) his left shoulder above 90 degrees, the vocational expert testified at the hearing that
she limited her examples to jobs requiring reaching directly in front, which a person could
do occasionally with only one arm. AR 938.
In a confusing argument, plaintiff contends that Dr. Mozena did not rely exclusively
on plaintiff’s subjective complaints because a September 2014 Department of Vocational
Rehabilitation job development plan contained notes and restrictions consistent with Dr.
Mozena’s opinion. AR 1107-35. However, that report is unsigned and like most of Dr.
Mozena’s opinion, appears to have been based on plaintiff’s subjective complaints.
Moreover, the DVR plan was issued after Dr. Mozena had given both of his opinions, so it
is unlikely he could have relied on it. (Plaintiff also devotes a substantial portion of his
discussion to what he describes as the administrative law judge’s improper reliance on
plaintiff’s daily activities. I will not address this argument because in his most recent
opinion, the administrative law judge did not mention plaintiff’s daily activities or identify
them as a reason for not giving greater weight to Dr. Mozena’s opinion.)
Second, the administrative law judge correctly noted that Dr. Mozena did not explain
why plaintiff would be limited in his ability to twist, crouch, squat or climb ladders, in light
of the fact that all of these activities involve the lower extremities, which are not affected by
plaintiff’s medical impairments. Although plaintiff seems to dispute this finding, he fails to

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develop any meaningful argument and again refers to the Department of Vocational
Rehabilitation plan.
Third, with respect to absences from work, the administrative law judge noted that
there was no evidence that plaintiff had regular flare ups, uncontrolled pain or remained off
task more than 10 percent of the workday. Plaintiff disputes this by summarizing his
medical appointments, during which he sometimes reported having pain. However, as
discussed in the context of the credibility determination, plaintiff generally reported that his
neck and arm pain was controlled with medications and injections.

Although he did

complain of pain on a few occasions between the end of 2010 and 2014, he reported
experiencing relief when Dr. Mozena adjusted his pain medications or referred him for a
steroid injection. Although the administrative law judge did not explain why he limited
plaintiff to being off task 10 percent of the workday, the vocational expert explained that
this restriction did not affect her testimony about available employment because every
person is off task 10 percent of the time and it has no significant bearing on a person’s
employment. AR 945-50.
Fourth, the administrative law judge noted that Dr. Mozena made his August 2014
findings (including the no reaching and lower extremity limitations) in the context of
plaintiff’s report that he had already been found disabled and just needed a form to send in
from his doctor. AR 836-37. Plaintiff contends that this is “flawed reasoning” because “it
was noted that additional time was spent completing paperwork for vocational
rehabilitation.” Dkt. #12 at 27 (citing AR 1149). Plaintiff’s argument is difficult to

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understand, but he seems to be saying that Dr. Mozena understood why plaintiff needed an
assessment of his limitations. However, the progress note cited by plaintiff was dated
September 2012, two years before Dr. Mozena issued the 2014 opinion. The progress note
associated with Dr. Mozena’s August 2014 findings states that
He continues to work a small amount periodically, but has been granted
disability through ssi per his report. He brings a form with him to be
completed, this is for his lawyer, unclear as to what he has retained a lawyer
for, seems that this is in regards to ssi disability, but he also reports that this
has already been approved.
AR 1159. Accordingly, it was not unreasonable for the administrative law judge to conclude
that in August 2014, Dr. Mozena may have followed plaintiff’s subjective complaints rather
than providing a medically-based opinion. AR 837.
In sum, I find that the administrative law judge provided good reasons for not
adopting all of the restrictions assessed by Dr. Mozena.

C. Vocational Expert Testimony
The vocational expert determined that a person with plaintiff’s residual functional
capacity could perform jobs as a machine tender, office worker and video surveillance
monitor and identified the corresponding numbers in the Dictionary of Occupational Titles
for each job. AR 941-42. “Under SSR 00–4p, . . . the ALJ has an affirmative responsibility
to ask if the [vocational expert]’s testimony conflicts with the [Dictionary of Occupational
Titles], and if there is an apparent conflict, the ALJ must obtain a reasonable explanation.”
Terry v. Astrue, 580 F.3d 471, 478 (7th Cir. 2009). Plaintiff contends that the vocational

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expert’s testimony regarding the machine tender and office worker positions conflicts with
the Dictionary because the Dictionary defines those positions as requiring frequent, bilateral
reaching, handling and fingering and the administrative law judge found that he was capable
of only occasional reaching, fingering and handling on the left side.
Although defendant agrees that work as a machine tender and office worker requires
frequent reaching, she argues that the administrative law judge specifically asked the
vocational expert about the reaching requirement and that the vocational expert provided
a reasonable explanation that the administrative law judge could rely on. I agree. At the
hearing, the administrative law judge asked the vocational expert whether her findings would
be consistent with the Dictionary and she responded that they would be. AR 935. After
posing one hypothetical question involving an individual capable of light work limited in
part by occasional reaching in all directions with the left non-dominant hand, the vocational
expert testified that the individual could perform work as a bench assembly worker, office
helper, food preparer and counter clerk. AR 936-37. The administrative law judge then
asked the vocational expert how the Dictionary dealt with reaching requirements, and the
vocational expert explained that because the Dictionary addresses reaching with both hands,
she had limited her examples to jobs requiring reaching directly in front, which a person
could do with only one arm. AR 938. She also testified that even though all of the jobs
except for counter clerk required frequent reaching, a person limited to occasional reaching
on one side could perform them because none of the jobs require reaching in several
directions and the person could perform any required reaching with the dominant hand and

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arm. Id.
Plaintiff points out that the vocational expert offered her explanation in response to
jobs identified at the light exertional level and not did not testify specifically about sedentary
jobs requiring frequent reaching. However, plaintiff fails to note why this would make a
difference and does not develop the argument in a meaningful way. Both the administrative
law judge and the vocational expert made it clear after the first hypothetical that they were
aware of the general conflict between a job requiring frequent bilateral reaching and a
limitation of occasional reaching on one side. A review of the hearing transcript shows that
the administrative law judge did not limit his question about reaching to light work and the
vocational expert answered in general terms with respect to the Dictionary as a whole.
Plaintiff also states that “it is hard to see how someone with occasional [] handling
and fingering to one side could perform a job that requires frequent [] handling and
fingering.” Dkt. #12 at 32. However, plaintiff cites no authority showing that the positions
of machine tender and office worker require frequent handling. In addition, the vocational
expert testified that these positions would not require more than occasional handling and
fingering. AR 939-42.
Plaintiff contends that the vocational expert offered vague and unsupported testimony
that having to be off task 10 percent of the time would not have any impact on a person’s
employment.

In response to questioning by plaintiff’s attorney, the vocational expert

explained that being off task 10 percent of the workday did not affect her testimony because
every person is off task 10 percent of the time and it has no significant bearing on a person’s

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employment. AR 945-50. She explained that “[a]ll the research on students and workers”
shows that “[e]mployers do not keep track of who’s on task . . . [b]ut they do keep track of
production” and “usually if you are off task 15 percent of the time or more . . . you might
have trouble producing as much as the other average workers.” AR 945-46. Plaintiff did not
question the vocational expert further at the hearing about the basis of her opinion and fails
to offer any reason why the administrative law judge should not have relied on the vocational
expert’s testimony.
Finally, relying on statements made in dicta by the Court of Appeals for the Seventh
Circuit, plaintiff criticizes the vocational expert for not identifying an official source for the
number of jobs in each job classification she identified from the Dictionary. Voigt v. Colvin,
781 F.3d 871, 879 (7th Cir. 2015) (“[T]he ALJ fully credited the VE’s testimony . . . even
though the testimony did not explain the source of the expert’s estimate of the number of
jobs that [plaintiff] could perform.”); Browning v. Colvin, 766 F.3d 702, 709 (7th Cir.
2014) (“There is no official source of number of jobs for each job classification in the DOT,
and while there are unofficial estimates of jobs in some categories, the vocational experts do
not in general, and the vocational expert in this case did not, indicate what those data
sources are or vouch for their accuracy.”). However, as defendant points out, despite these
criticisms, the court of appeals did not hold in either Voigt or Browning that the
administrative law judge erred in relying on the unexplained vocational testimony and did
not overrule well-established precedent allowing administrative law judges to do so. Id. See
also 20 C.F.R. §§ 404.1566(d) and (e), 416.966(d) and (e) (ALJs may rely on vocational

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expert testimony at step five and must take administrative notice of “reliable job
information,” including the Dictionary).
Although recent court of appeals cases suggest that no vocational expert opinion can
be relied upon until the Social Security Administration or some other federal agency
undertakes an update of the Dictionary of Occupational Titles or creates an acceptable
substitute, the court has not yet overturned an administrative law judge’s denial of an appeal
on that basis alone. Brown v. Colvin, case no. 14-cv-894-bbc, 2015 WL 7294547, at *7
(W.D. Wis. Nov. 17, 2015). Similarly, in remanding administrative social security decisions
on other grounds, this court has cautioned administrative law judges about the concerns
raised by the Court of Appeals for the Seventh Circuit, but it has not reversed on this ground
alone. E.g., Quinnell v. Colvin, case no. 14-cv-601-bbc, 2015 WL 2371513, at *7 (W.D.
Wis. May 18, 2015) (advising that on remand, ALJ should question vocational expert more
thoroughly about basis of opinion regarding number of jobs plaintiff might be able to
perform). As this court held in Brown, 2015 WL 7294547 at *7, it would make no sense
to overturn the decision in this case in which the record shows that plaintiff is capable of
performing a limited range of sedentary work in the jobs identified by the vocational expert.
Cf., Voigt, 781 F.3d at 877 (plaintiff plagued with psychiatric problems that sometimes
resulted in “explosive behavior,” which would not “augur well for success as a security
guard”); Herrmann v. Colvin, 772 F.3d 1110, 1111 (7th Cir. 2014) (plaintiff suffered
“assemblage of impairments” affecting many aspects of her functional capacity). It was not
unreasonable for the administrative law judge in this case to rely on the vocational expert’s

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identification of a range of sedentary work that a person with plaintiff's physical restrictions
could perform, particularly when it does not require a vocational expert to observe that the
kinds of jobs identified exist throughout the community.

ORDER
IT IS ORDERED that plaintiff Matthew Fitzgerald’s motion for summary judgment,
dkt. #11, is DENIED. The decision denying plaintiff benefits is AFFIRMED. The clerk of
court is directed to enter judgment in favor of defendant and close this case.
Entered this 4th day of February, 2016.
BY THE COURT:

/s/
__________________________________
BARBARA B. CRABB
District Judge

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