United States District Court, E.D. Wisconsin
DECISION AND ORDER
William C. Griesbach, Chief Judge United States District
Thomas Modjewski challenges the decision of the Commissioner
of Social Security denying him disability benefits. He claims
that the administrative law judge (ALJ) who heard the case
erred in assessing the weight he accorded to the opinion of
his treating physician and in assessing the pace at which he
would be able to work. Finding no error and substantial
evidence to support the ALJ's decision, I affirm.
was seriously injured in a roll-over motor vehicle accident
in 1999. He sustained fractured ribs, a ruptured lung,
bruised liver, broken nose, broken scapula and clavicle, and
spinal injuries consisting of a C-6 fracture and a T-7
compression fracture. He was working as a welder at the time
of the accident, but has not been employed since. Plaintiff
claims that the injuries sustained in the accident resulted
in physical and mental impairments that render him disabled.
actually the third time this case has been heard by an ALJ
and the second occasion for judicial review. A previous
application was denied by a decision issued by ALJ Senander
on August 22, 2005. R. 15. Plaintiff did not seek judicial
review of that decision, but he filed a second application
that was heard by ALJ Joseph Jacobson in October 2008, and
denied by written decision dated December 10, 2008. Plaintiff
did seek judicial review of that decision, which became final
when the Appeals Council denied Plaintiff's request for
review. In a decision issued by Judge Randa on October 12,
2011, the Commissioner's decision was reversed and
remanded. R. 411-16. The Court held that the ALJ erred in
failing to cite any medical evidence to support his finding
that Plaintiff's mental impairment did not meet or equal
Listing 12.02 and in failing to fully account for the
limitations the ALJ found Plaintiff had in concentration,
persistence or pace. R. 414-15. The Court also found that the
ALJ erred in mischaracterizing a March 2006 functional
capacity evaluation on which he relied. R. 415.
remand, a new hearing was held at which Plaintiff, two
medical experts and a vocational expert testified. Plaintiff
testified that he currently lives at the home of his mother
and father with his wife, who works third shift for Times
Printing. R. 330, 333-34. On a typical day, Plaintiff
testified that he wakes up at about 5:30 a.m., sits around
for awhile, and then picks his wife up from work. R. 333.
When he returns home, they make breakfast, and he helps with
the dishes. He then more or less sits around and watches
television. If the grass needs to be cut, he cuts it using a
sit-down mower. Because his parents are elderly, he helps
around the house, cleaning and vacuuming. He reads the
newspaper on the internet. He goes deer hunting but does not
climb to or hunt from a tree stand. He walks less than an
eighth of a mile into the woods and sits, stands or leans
against a tree. R. 335-37. Although his doctors encourage him
to exercise, Plaintiff testified that he can only walk about
ten minutes before his back starts aching “real
bad.” R. 337. The only way he can get relief is to lie
down, but even that doesn't take the pain away. He has
less trouble sitting than standing. His doctor has given him
a prescription for Vicodin which he takes only when he
absolutely needs it, which is not every day. R. 338-39.
Plaintiff testified that he slept “maybe four or five
hours a night, ” which is the same as when he was
working. R. 345.
record also reflected Plaintiff suffered a heart attack and
had stents inserted to relieve blockage in October 2011. He
was diagnosed with ongoing coronary artery disease following
the incident, but was being treated with medication.
Plaintiff testified that, other than occasional shortness of
breath, he had fully recovered and his blood pressure was
“always perfect.” R. 350.
respect to mental health issues, Plaintiff testified that he
had a neuropsychological evaluation in 2008, but had not
received any treatment. He testified that he gets frequent
headaches that “hurt so bad sometimes I can't
concentrate.” R. 348. He denied any side effects from
his medication. R. 349.
medical experts also testified at the hearing. Dr. Malcolm A.
Brahms, who is board certified in Orthopaedics, opined after
listening to Plaintiff's testimony and based on his
review of the entire medical record that Plaintiff was
capable of performing light work, should avoid ladders,
ropes, and scaffolds, and his range of motion should be
limited between his waist and his shoulder, avoiding overhead
work, with only occasional kneeling, stooping and crawling.
Because of the carpal tunnel symptoms, Dr. Brahms also
concluded the fine manipulation should only be done
occasionally and not repetitively. R. 377-78.
second medical expert who testified was Dr. Timothy Lynch, a
psychologist, who had likewise reviewed the entire file and
listened to Plaintiff's testimony. Dr. Lynch testified
that in his opinion, Plaintiff had no severe mental health
impairments, and thus there were no limitations to add to his
RFC. R. 380-81. In response to questioning by Plaintiff's
counsel, Dr. Lynch carefully reviewed the results of the
tests administered by Dr. Sarah R. Kortenkamp as part of her
neuropsychological evaluation and noted that they were almost
in their entirety within normal limits. R. 382-85.
on the testimony at the hearing and the entire record,
including the medical evidence which will be discussed in
more detail below, the ALJ found that Plaintiff had the
following severe impairments: disorders of the spine with
residual headaches; status post rib fracture; status post
head injury; coronary artery disease status post myocardial
infarction; carpal tunnel syndrome; and obesity. The ALJ
further found that none of Plaintiff's impairments met or
medically equaled a listed impairment as described in 20
C.F.R. Part 404, Subpart P, Appendix 1, and that he has the
RFC to perform light work that allows him to alternate
between sitting and standing at will, requires no more than
occasional performance of fine manipulation tasks with his
non-dominant left hand, overhead reaching with his left upper
extremity, stooping kneeling, crouching, crawling, balancing,
stooping, or climbing of ramps and stairs, and no climbing of
ladders, ropes, or scaffolding. As an additional limitation
due to pain, the ALJ found that Plaintiff was unable to
maintain the concentration necessary to perform detailed or
complex tasks. Though unable to perform his past work as a
welder, the ALJ found that Plaintiff was able to perform
other jobs, such as cashier, office helper, or industrial
inspector, and thus was not disabled. R. 288-98.
reviewing a decision of an ALJ on a claim for Social Security
disability benefits, this court may not reweigh evidence,
resolve conflicts in the record, decide questions of
credibility, or, in general, substitute its own judgment for
that of the Commissioner of Social Security; rather, the
court's task is limited to determining whether the
ALJ's factual findings are supported by substantial
evidence. Young v. Barnhart, 362 F.3d 995, 1001 (7th
Cir. 2004); see also 42 U.S.C. § 405(g)
(“The findings of the Commissioner of Social Security
as to any fact, if supported by substantial evidence, shall
be conclusive.”) Despite the deference accorded to the
ALJ, however, a reviewing court must not “simply
rubber-stamp the Commissioner's decision without a
critical review of the evidence.” Clifford v.
Apfel, 227 F.3d 863, 869 (7th Cir. 2000). The
Commissioner's decision cannot stand if the ALJ fails to
build a logical bridge from the evidence to his conclusion.
Green v. Apfel, 204 F.3d 780, 781 (7th Cir. 2000).
While the ALJ need not provide a “complete written
evaluation of every piece of testimony and evidence, ”
Diaz v. Chater, 55 F.3d 300, 308 (7th Cir. 1995),
his decision must reflect a fair assessment of evidence and
be free of fatal gaps and contradictions. Johnson v.
Apfel, 189 F.3d 561, 563 (7th Cir. 1989). Still, a
reviewing court must “give the opinion a commonsensical
reading rather than nitpicking at it.” Id. at