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Fitzgerald v. Colvin

United States District Court, W.D. Wisconsin

February 4, 2016

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 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.


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 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 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 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 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 hours.
• The need to shift positions at will.
• Lift up to 10 pounds ...

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