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Kenealy v. Saul

United States District Court, W.D. Wisconsin

December 2, 2019

ANDREW SAUL, Commissioner of the Social Security Administration, Defendant.



         Plaintiff 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.


         Kenealy's 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 this court.

         While 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.

         After 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.

         This 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.[1] 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.

         This 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).

         A. Handling and fingering restrictions

         In 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. 626.[2] 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.

         Kenealy 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.

         1. Tan's fingering restriction

         The ALJ 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.

         First, 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 Tan's restrictions.

         Second, 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 ...

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