Cindy Desotelle v. KILOLO KIJAKAZI, Acting Commissioner of Social Security

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued January 19, 2023
Decided June 23, 2023
Before
MICHAEL B. BRENNAN, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 22-1602
CINDY DESOTELLE,
Plaintiff-Appellant,
v.
KILOLO KIJAKAZI,
Acting Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District
Court for the Eastern District of Wisconsin.
No. 1:20-cv-01283
Nancy Joseph,
Magistrate Judge.
O R D E R
An administrative law judge ruled that Cindy Desotelle was not eligible for
Social Security disability benefits because, although she was unable to perform her prior
relevant work, she could perform a significant number of other jobs in the national
economy. On appeal, Desotelle argues that the ALJ improperly evaluated her pain-
management physician’s opinion and failed to establish the reliability of the vocational
expert’s estimates of the number of jobs available to her. Because we find substantial
evidence supports the ALJ’s decision, we affirm.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 22-1602 Page 2
I
In March 2018, Cindy Desotelle applied for disability benefits due to several
impairments, including back and neck pain, shoulder pain, degenerative disc disease,
arthritis, bulging herniated disks, sciatica, plantar fasciitis, leg pain, edema, bursitis,
migraines, depression, and social anxiety. She specified that these health problems
affected her abilities to squat, bend, stand, reach, walk, sit, kneel, talk, hear, climb stairs,
see, remember, complete tasks, concentrate, understand, follow instructions, use her
hands, get along with others, and handle stress. The Social Security Administration
denied Desotelle’s application initially and on reconsideration, and Desotelle appeared
before an ALJ at a hearing in August 2019. Desotelle and vocational expert Jacquelyn
Wenkman testified at the hearing. The ALJ also considered the medical opinion of
Dr. Michael Kolczynski, a pain-management physician who had an examining and
treating relationship with Desotelle. The ALJ found his opinion “somewhat
persuasive.”
The ALJ concluded that Desotelle was not disabled under the Social Security Act
from the alleged onset date in November 2016 through her date last insured in
September 2018. The ALJ applied the five-step evaluation for disability claims. 20 C.F.R.
§ 404.1520(4). At step one, the ALJ found that Desotelle had not worked from the
alleged onset date through her date last insured. At steps two and three, the ALJ found
that Desotelle had several severe impairments, but none presumptively established
disability. At step four, taking into consideration the medical opinions in the record, the
ALJ found that Desotelle could not perform her past relevant work but could do light
work with certain physical limitations. At step five, relying on Wenkman’s testimony,
the ALJ found that there were jobs that existed in significant numbers in the national
economy that Desotelle could perform, including office helper, mail clerk, and hostess.
The ALJ thus denied Desotelle’s claim for disability benefits, and the Appeals Council
denied Desotelle’s request for review. The district court affirmed the ALJ’s decision,
and Desotelle appeals.
Desotelle raises two issues on appeal. First, Desotelle disagrees with the ALJ’s
treatment of Dr. Kolczynski’s medical opinion. Second, Desotelle argues that the ALJ
erred by failing to ensure the reliability of the vocational expert’s estimates of the
number of jobs available to her in the national economy, and thus could not rely on
those estimates to meet the agency’s burden of proof at step five.

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No. 22-1602 Page 3
We ask whether substantial evidence supports the ALJ’s decision and review de
novo the district court’s decision. 42 U.S.C. § 405(g); Stephens v. Berryhill, 888 F.3d 323,
327 (7th Cir. 2018). Substantial evidence is only “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion[,]” Biestek v. Berryhill,
139 S. Ct. 1148, 1154 (2019) (quotation omitted), and “the threshold for such evidentiary
sufficiency is not high.” Id.
II
Desotelle asserts the ALJ erred by discounting Dr. Kolczynski’s assessment that
she needs certain work limitations and by giving too little weight to his relationship
with her. In weighing the persuasiveness of a medical opinion, the “most important
factors” an ALJ considers are the opinion’s “supportability” and “consistency” with the
record. 20 C.F.R. § 404.1520c(b)(2). The ALJ “may,” but is “not required,” to explain her
consideration of other factors, such as the source’s relationship with the claimant. Id. An
ALJ should generally give controlling weight to a treating physician’s opinion unless it
is unsupported by medical findings or inconsistent with the record. 20 C.F.R.
§ 404.1527(c)(2). An ALJ need only “minimally articulate[]” her reasoning for the
persuasiveness of the medical opinion. Elder v. Astrue, 529 F.3d 408, 415 (7th Cir. 2008)
(quotation omitted). The ALJ met that standard here.
A
Dr. Kolczynski opined that Desotelle could perform light work with certain
limitations. The ALJ discounted some of his proposed work limitations, including that
Desotelle needed unscheduled breaks, the option to change positions between sitting
and standing, and limited twisting. Desotelle challenges the ALJ’s rejection of these
limitations. But the ALJ’s decision is sound: these limitations are unsupported by
objective medical evidence and inconsistent with other medical opinions in the record.
Unscheduled breaks and changing positions. The ALJ reasonably discounted Dr.
Kolczynski’s opinion that Desotelle needed unscheduled breaks and the option to
change positions. As the ALJ emphasized, Dr. Kolczynski’s opinion appeared to rely
primarily upon Desotelle’s subjective complaints that were unsupported by objective
medical evidence. The record shows that Desotelle could manage her pain with
treatment, exercised daily, exhibited alertness and full orientation, and demonstrated
reasonably good functioning during physical examinations—including a normal gait

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No. 22-1602 Page 4
and strength, and intact balance and coordination. Additionally, as the ALJ noted, Dr.
Kolczynski’s assessments were inconsistent with other medical opinions. Notably,
consulting physician Dr. Marcia Lipski found Desotelle could perform light work with
less restrictive sitting limitations than those proposed by Dr. Kolczynski. Further, as the
ALJ highlighted, there was an inconsistency within Dr. Kolczynski’s written report
between the questions he was willing to opine on and those he declined to answer.
Thus, considering Dr. Kolczynski’s opinion was inconsistent with objective medical
evidence and other medical opinions, as well as internally inconsistent, the ALJ was
entitled to discount it. See Prill v. Kijakazi, 23 F.4th 738, 750–52 (7th Cir. 2022).
Desotelle raises three arguments that are unavailing. First, Desotelle says the ALJ
ignored objective evidence that supports Dr. Kolczynski’s opinion as to the need for
unscheduled breaks and changing positions. But the ALJ explicitly considered the
evidence that Desotelle believes supports his opinion: her right hip replacement
surgery, fibromyalgia diagnosis, difficulties standing and sitting, pain and numbness
due to her impairments, fatigue, and low energy. Despite these impairments, the record
also showed Desotelle had largely normal physical examination findings, as well as
adequate concentration and attention. Accordingly, the ALJ did not simply cherry-pick
facts that support a finding of non-disability. Even if there is some evidence that weighs
in favor of Desotelle’s interpretation, there is substantial evidence supporting the ALJ’s
finding here.
Second, Desotelle contends the ALJ gave too little weight to Dr. Kolczynski’s
opinion because he primarily relied upon her subjective complaints. But the opinion’s
reliance on subjective complaints was one of several factors the ALJ gave for
discounting it, and the ALJ was not barred from considering and weighing subjective
statements. See Adaire v. Colvin, 778 F.3d 685, 688 (7th Cir. 2015). Thus, the ALJ was
permitted to credit other record evidence over Dr. Kolczynski’s opinion upon a finding
that it was inconsistent with and unsupported by the record. See Prill, 23 F.4th at 750–
52.
Third, Desotelle contests the ALJ’s identification of an inconsistency in Dr.
Kolczynski’s incomplete report: on the one hand, Dr. Kolczynski opined that Desotelle’s
pain required unscheduled breaks, but on the other, he expressed no opinion on
whether her pain may require her absence from work. Desotelle says Dr. Kolczynski left
the question related to her absences blank because, as he wrote on the page he declined
to answer, he does “not treat cognitive disabilities/depression symptoms.” But this does
not clarify the discrepancy. The questions underlying the need for unscheduled breaks

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and absences from work are not significantly different. Accordingly, the ALJ did not err
in discounting part of the opinion for this reason.
Twisting limitation. Substantial evidence also supports the ALJ’s rejection of
Dr. Kolczynski’s opinion that Desotelle required limited twisting. As the ALJ noted, the
record indicates that Desotelle had mildly reduced ranges of motion in the spine and
negative straight leg raise test results, undermining Dr. Kolczynski’s opinion that she
could only twist occasionally. Dr. Kolczynski’s opinion as to this limitation was
inconsistent with other evidence in the record, so the ALJ was entitled to give his
opinion less weight.
Desotelle argues unpersuasively that the ALJ played doctor by interpreting the
negative straight leg test results and finding that limitations in her ranges of motion
were insignificant because of those test results. Desotelle misrepresents the ALJ’s
decision and reads in a causal relationship where none exists. As the ALJ noted, the
record shows Desotelle had negative straight leg test results and mildly reduced ranges
of motion in the spine. It was reasonable for the ALJ to find that the proposed twisting
limitation was inconsistent with the record. The ALJ did not play doctor by substituting
her own interpretation of the medical evidence in place of a medical expert.
B
Desotelle argues that the ALJ gave too little weight to Dr. Kolczynski’s opinion,
given that he was an examining and treating physician with a specialty in pain
management. But the ALJ reasonably discounted Dr. Kolczynski’s opinion for three
reasons. First, it conflicted with the objective medical evidence. See Albert v. Kijakazi, 34
F.4th 611, 614 (7th Cir. 2022). As presented above, the record does not support Dr.
Kolczynski’s assessment that Desotelle required unscheduled breaks, changing
positions, and limited twisting. The record is also inconsistent with another work
limitation proposed by Dr. Kolczynski: he opined Desotelle could never engage in
frequent lifting, whereas the record documented normal strength in Desotelle’s arms
and legs.
Second, the ALJ reasonably rejected Dr. Kolczynski’s opinion because it
conflicted with other medical opinions in the record—such as Dr. Lipski’s assessment
that Desotelle could frequently lift 10 pounds, while Dr. Kolczynski found Desotelle
could never engage in frequent lifting. The ALJ faced competing opinions, and we
cannot say, as a matter of law, that the ALJ made the wrong choice where

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Dr. Kolczynski’s opinion was inconsistent with medical evidence from the relevant
period. See Liskowitz v. Astrue, 559 F.3d 736, 742 (7th Cir. 2009).
Third, after addressing the supportability and consistency of Dr. Kolczynski’s
opinion with the record, the ALJ noted that Dr. Kolczynski primarily treated Desotelle
after her insured status expired and issued the report after that date. He also left much
of the report blank, including no opinion about the earliest date when the work
limitations applied. “We typically expect an ALJ to consider an opinion by a doctor who
treated the claimant after the relevant period if it offers a retrospective diagnosis that is
corroborated by evidence produced during the relevant period.” Zoch v. Saul, 981 F.3d
597, 602 (7th Cir. 2020); see also Liskowitz, 559 F.3d at 742. That’s not the case here.
Dr. Kolczynski primarily treated Desotelle after the relevant period, declined to answer
part of the report concerning the relevant period, and proposed work limitations that
conflicted with evidence produced during the relevant period, as detailed above. Thus,
although Dr. Kolczynski had an examining and treating relationship with Desotelle, the
regulations permitted the ALJ to discount part of his opinion that was unsupported and
inconsistent with the record and other medical opinions.
III
Next, Desotelle argues that the ALJ erred at the final step of the disability
analysis, where the agency bears the burden of demonstrating that there are jobs in the
national economy that the claimant could perform. 20 C.F.R. § 416.960(c)(2); Ruenger v.
Kijakazi, 23 F.4th 760, 761 (7th Cir. 2022). ALJs typically rely on the testimony of a
vocational expert, who has experience with job placement and consults various sources
to estimate the availability of the jobs a claimant can still perform. Ruenger, 23 F.4th at
761–62; Chavez v. Berryhill, 895 F.3d 962, 964–66 (7th Cir. 2018).
During the hearing, Desotelle’s counsel asked vocational expert Wenkman two
questions relevant here: “What is the source of the numbers that you’ve listed for these
jobs?” and, “[W]hat’s the methodology that you use?” Wenkman said she relied on two
sources: Occupational Employment Quarterly and the Department of Labor’s Wage
Earnings and Benefits. As to methodology, Wenkman explained: “Well, I don’t do any
extrapolation or anything. I get the numbers, so if they’re pretty grossly overweighted
in the resources, then I don’t use those examples. If they’re not, I can still use these
numbers.”

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Desotelle argues that her counsel’s questions at the hearing constituted an
objection to the vocational expert’s methodology, thereby triggering the ALJ’s duty to
confirm the reliability of the methodology. Desotelle says that requiring more would
shift the burden of proof from the agency to claimants like her.
Desotelle is correct that the substantial evidence standard requires an “ALJ to
ensure that the vocational expert’s estimate is the product of a reliable methodology[.]”
Ruenger, 23 F.4th at 763. But when the claimant does not put the methodology at issue
and the vocational expert’s testimony is otherwise uncontradicted, the ALJ is entitled to
credit the vocational expert’s testimony. Liskowitz, 559 F.3d at 744. That’s what
happened here. Desotelle did not challenge Wenkman’s estimates at the hearing (which
for the jobs at issue, appear to be quite conservative), and the two questions about the
expert’s sources and methods did not “reveal any shortcomings in the vocational
expert’s data or reasoning” that need be addressed by the ALJ. Donahue v. Barnhart,
279 F.3d 441, 447 (7th Cir. 2002). Although the vocational expert could have more
clearly explained her methods, see generally Ruenger, 23 F.4th at 764–66 (Scudder, J.,
concurring), “the ALJ was entitled to reach the conclusion she did.” Donahue, 279 F.3d at
447.
Desotelle further contends that Wenkman’s reliance on a publication that
employs the equal distribution method is without foundation, suggesting that the mere
use of the equal distribution method triggers the ALJ’s duty to inquire. But even
assuming counsel did not need to expressly object to the equal distribution method
during the hearing, we have not “enjoin[ed] [the] use of the equal distribution method”
and “intend no new obligations” at step five. Chavez, 895 F.3d at 970.
AFFIRMED

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