United States District Court, W.D. Wisconsin
OPINION AND ORDER
D. PETERSON DISTRICT JUDGE
Monica Kenealy seeks judicial review of a final decision of
defendant Andrew Saul, Commissioner of the Social Security
Administration, finding her not disabled under the Social
Security Act. She contends that administrative law judge
(ALJ) Michael Schaefer erred by (1) giving more weight to a
non-examining consultant than to two consultants who examined
her; (2) inadequately accounting for Kenealy's fatigue;
and (3) relying on inadequately supported testimony from a
vocational expert. None of these issues require remand, so
the court will affirm the commissioner's decision.
application for disability benefits has a long history, which
the court summarizes only briefly. She filed her initial
application in August 2010, alleging that she was disabled as
of August 27, 2010, by multiple sclerosis and depression.
After ALJ Brenton L. Rogozen denied her claim, the agency
Appeals Council remanded her case to ALJ Rogozen for
reconsideration. ALJ Rogozen held a second hearing and again
denied Kenealy's claim. After the Appeals Council denied
review of the ALJ's second decision, Kenealy appealed to
Kenealy's appeal to this court was pending, she filed a
second application for disability benefits in November 2013,
alleging disability as of August 25, 2010, again due to
multiple sclerosis and depression. After a hearing, ALJ
Schaefer denied Kenealy's second claim.
ALJ Schaefer's denial of Kenealy's second claim, this
court remanded her first claim for reconsideration.
Kenealy v. Berryhill, No. 15-cv-85, 2017 WL 527889
(W.D. Wis. Feb. 9, 2017). The Appeals Council then directed
ALJ Schaefer to reconsider Kenealy's first claim,
dismissing her second claim as redundant.
brings us to the decision now before the court, which
concerns the question of whether Kenealy has been disabled
since August 27, 2010. ALJ Schaefer held a new hearing, after
which he determined that Kenealy suffered from one severe
impairment (multiple sclerosis) and one non-severe impairment
(depression). R. 458. He concluded that she had the residual
functional capacity (RFC) to perform sedentary work with no
more than frequent handling and fingering. R. 461. He also
determined that due to her mild depression and physical
symptoms, including fatigue from her multiple sclerosis, she
was “limited to understanding, remembering, and
carrying out simple instructions and routine repetitive
tasks.” Id. The RFC also included many other
restrictions not relevant to this appeal. The ALJ found that
Kenealy wasn't disabled because she could work as a
telephone solicitor, an order clerk, or a cashier, positions
that he determined were sufficiently available in the
national economy. R. 467.
court must uphold the commissioner's decision to deny
benefits “if it applies the correct legal standard and
is supported by substantial evidence.” Campbell v.
Astrue, 627 F.3d 299, 306 (7th Cir. 2010). The
“substantial evidence” standard is deferential,
requiring only that the ALJ base his decision on relevant
evidence that a reasonable person could find sufficient to
support the decision. Gudgel v. Barnhart, 345 F.3d
467, 470 (7th Cir. 2003). In other words, the ALJ must
“build an accurate and logical bridge from the evidence
to his conclusion” to deny benefits. Clifford v.
Apfel, 227 F.3d 863, 872 (7th Cir. 2000).
Handling and fingering restrictions
determining that Kenealy could engage in frequent handling
and fingering, the ALJ considered opinions from three
consultants: Hongjing Tan, who examined Kenealy and
restricted her to occasional fingering without any
restrictions on handling, R. 375; Krissi Danielsson, who
examined Kenealy and restricted her to occasional fingering
and handling, R. 1354; and George Walcott, who didn't
examine Kenealy and concluded that she couldn't engage in
continuous forceful gripping and grasping, R.
The ALJ gave no weight to Tan's restriction and little
weight to Danielsson's, but he gave great weight to
Walcott's, which he found consistent with a restriction
to frequent handling and fingering, R. 465.
contends that the ALJ should have given more weight to Tan
and Danielsson's restrictions than to Walcott's
because Tan and Danielsson examined Kenealy and Walcott did
not. But federal regulations state that the ALJ will
“generally” give more weight to the opinions of
examining sources than to non-examining ones. 20 C.F.R.
§ 404.1527(c)(1). An ALJ must support the decision to
credit a non-examining source's opinion over an examining
source's opinion with substantial evidence in the record.
Gudgel, 345 F.3d at 470. The ALJ has done so here.
Tan's fingering restriction
gave Tan's fingering restriction no weight because Tan
cited no objective evidence to support it and because it was
inconsistent with evidence regarding Kenealy's work
history. R. 464. Kenealy challenges the ALJ's rejection
of Tan's restriction on two grounds, contending that (1)
Tan's restriction was adequately supported by objective
evidence elsewhere in his opinion; and (2) the ALJ
incorrectly inferred that Kenealy could engage in frequent
handling and fingering from her work history.
Kenealy says that Tan's full report shows adequate
support for his fingering restriction. But an ALJ can
discount an opinion that isn't supported with objective
evidence, White v. Barnhart, 415 F.3d 654, 659 (7th
Cir. 2005), and the only objective evidence Tan offered to
support his fingering restriction was the vague statement
that Kenealy's “MRI suggested MS, ” R. 375.
Kenealy says that the rest of Tan's report shows
objective support for his fingering restriction, but she
identifies only one objective finding regarding Kenealy's
hands: Tan's observation that her “[r]apid hand
movement was a little slow bilaterally, ” R. 372.
Neither Tan nor Kenealy explains why slightly slow rapid hand
movement would support a restriction to occasional handling
and fingering, and Kenealy identifies no other objective
findings or evidence in her record that would support
Kenealy says that the ALJ erred when he inferred that she
could engage in frequent handling and fingering from her work
history. The ALJ noted that between late 2016 and late 2017,
Kenealy simultaneously worked as a cashier and a secretary
“at significant levels of earnings and for significant
time, ” R. 464, “at a full time, or substantial
part time basis, ” R. 466. He also noted ...