The additional evidence proffered by Menolascina consists of the following: a March 31,
2000 letter authored by Dr. Lorenz indicating that "Menolascina will always have some back
pain"; a May 4, 1999 note authored by Dr. Lorenz stating that Menolascina "may return to work"
with certain limitations on lifting, standing, and sitting; an April 21, 1999 functional assessment
completed by Gregory Steil indicating Menolascina's tolerance for work; and a May 4, 1999
Residual Physical Functional Capacity Assessment completed by some physician. (R. at
234-54.) None of this evidence is new. Menolascina's additional evidence is dated prior to the
date of the ALJ hearing or is based on information that existed prior to the date of the ALJ
hearing, and, in light of Menolascina's offering of only the unsubstantiated statement that "these
additional records were not available to the ALJ for her review prior to her decision,” we hold
that Menolascina has failed to demonstrate that the additional evidence was unavailable to him
prior to the ALJ hearing. See Perkins v. Chater, 107 F.3d 1290, 1296 (7th Cir. 1997); Sample,
999 F.2d at 1144; Waite v. Bowen, 819 F.2d 1356, 1361-62 (7th Cir. 1987). Menolascina's
unsubstantiated statement relating to the unavailability of the additional records is similarly

deficient to demonstrate good cause. See Waite, 819 F.2d at 1361-62.

Vv. Conclusion
For the reasons stated, this Court denies Menolascina's Motion for Summary Judgment

and Menolascina's Motion for Remand. The Commissioner's final decision is affirmed.

MARTIN C. ASHMAN
Dated: April 23, 2002. United States Magistrate Judge

-19-


473, 487 (7th Cir. 1993) (quoting Imani v. Heckler, 797 F.2d 508, 512 (7th Cir. 1986)). A
credibility finding often involves intangible or inarticulable elements that cannot be discerned
from the transcript. Edwards v. Sullivan, 985 F.2d 334, 338 (7th Cir. 1993) (quoting Kelley v.
Sullivan, 890 F.2d 961, 964 (7th Cir. 1989)). To the extent that a credibility finding rests on
objective factors or fundamental implausibilities, however, the court has greater freedom to
engage in review. Herron v. Shalala, 19 F.3d 329, 335 (7th Cir. 1994).

In making a credibility finding, the administrative law judge must provide specific
reasons for the weight given to the claimant's statements, supported by evidence in the record.
Zurawski v. Halter, 245 F.3d 881, 887 (7th Cir. 2001) (quoting SSR 96-7p). Factors that the
administrative law judge must consider include the objective medical evidence, the claimant's
daily activities, the location, duration, frequency, and intensity of the claimant's symptoms,
conditions that precipitate and aggravate the claimant's symptoms, medication taken or treatment
received to alleviate the claimant's symptoms, and the functional limitations caused by the
claimant's symptoms. Zurawski, 245 F.3d at 887-88 (quoting Luna, 22 F.3d at 691). Statements
of pain cannot be discredited simply because objective medical evidence does not substantiate
the extent of pain alleged. Pope, 998 F.2d at 486. A claimant may be more limited by his
impairments than that which the objective medical evidence shows. However, the administrative
law judge is not required to give full credit to every statement of pain, or to find that the claimant
is disabled simply because the claimant states that he feels unable to work. Sedrak v. Callahan,
987 F. Supp. 1063, 1068 (N.D. Ill. 1997); Baber v. Sullivan, 756 F. Supp. 396, 399-400 (N.D.

Ind. 1991).

-13-


his lower back pain was so bad that he could not do anything. (R. at 37-38.) But on "good days,"
Menolascina was able to go walking for up to five blocks, drive a car, and visit with friends at the
Italian club for around an hour and a half at a time. (R. at 42-43.) He could stand or sit for about
twenty minutes without changing position. (R. at 45.) At the hearing Menolascina stated that he
never did household chores due to his lower back pain, although on his daily activity
questionnaire Menolascina stated that he did not do household chores prior to his back injury
because his wife did them. (R. at 39-40, 117.)

To alleviate his lower back pain, Menolascina took Tylenol or Motrin at least one time
per day, sometimes three to four times per day. (R. at 40, 43-44.) Menolascina stopped taking
prescription medicine because it caused him stomach problems. (R. at 40.) On occasion,

Menolascina's daughter would massage Menolascina's lower back to abate the pain. (R. at 37.)

B. Medical Evidence

The medical evidence begins with Dr. Mark Lorenz's progress notes dated May 19, 1993.
Dr. Lorenz noted that Menolascina had injured his back at work in March 1993, that Menolascina
received treatment since that date from other physicians, that Menolascina was told to return to
work by one of those physicians, but that Menolascina was still experiencing lower back and leg
pain. (R. at 195.) At the time, Menolascina had significant restriction of bending and extending
at the waist. An x-ray revealed severe degenerative disc disease at LS-S1 and other problems.
(R. at 195.) Dr. Lorenz recommended that Menolascina remain off work and opined that
Menolascina was a good candidate for fusion, especially considering that other treatment was

ineffective. (R. at 195.) Dr. Boone Brackett also examined Menolascina in 1993. Menolascina

-4-


Copies have been mailed to:

FRANK G. TUZZOLINO, Esq.

4849 North Milwaukee
Suite 201
Chicago, IL 60630

Attorney for Plaintiff

JONATHAN C. HAILE
Assistant United States Attorney
219 South Dearborn Street
Suite 500

Chicago, IL 60604

Attorney for Defendant


B. The ALJ's Failure to Address Evidence

Menolascina next argues that the ALJ committed legal error by failing to explain her
reason for rejecting Dr. Eilers's opinion that Menolascina experienced "pain exacerbations and
variable daily performance." (Pl.'s Mem. Supp. Mot. Summ. J. at 10.) A court reviews the
administrative law judge's application of law without deference and without regard to the volume
of medical evidence that supports the administrative law judge's findings. White v. Apfel, 167
F.3d 369, 373 (7th Cir. 1999). If the administrative law judge's application of law is not properly
grounded, then remand or reversal is warranted. Cook v. Massanari, No. 00 C 4157, 2001 WL
755145, at *7 (N.D. Il. July 2, 2001); Gavin v. Heckler, 620 F. Supp. 999, 1000 (ND. Ill. 1985).

The administrative law judge has a duty to articulate reasons for accepting or rejecting
entire lines of evidence. Herron, 19 F.3d at 333; Zblewski v. Schweiker, 732 F.2d 75, 78-79 (7th
Cir. 1984). A written evaluation of every piece of the evidence is not required. Carlson v.
Shalala, 999 F.2d 180, 181 (7th Cir. 1993). Yet an administrative law judge may not select and
discuss only the evidence that supports her conclusions. Herron, 19 F.3d at 333.

This argument addresses points that were already discussed above. Briefly, we iterate
that the ALJ did not ignore or reject Dr. Eilers's opinion that Menolascina experienced pain
exacerbations and variable daily performance. The ALJ accepted Dr. Eilers's opinion—as well
as Drs. Lorenz's, Aliga's, Patey's, and Gonzalez's opinions—telating to Menolascina's lower back
pain. It was Menolascina's testimony that the ALJ rejected, to a degree. A reading of pages
thirteen through fifteen of the record evinces this, and the reasons given are adequately explained

therein.

-17-


ten pounds, stand or walk for about six hours in an eight-hour workday, sit for about six hours in
an eight-hour workday, and push or pull without limitation. (R. at 198.) Due to Menolascina's
history of back pain and limited range of motion of the lumbar spine, Dr. Gonzalez believed that

Menolascina could climb, stoop, kneel, crouch, and crawl only occasionally. (R. at 199.)

c. The Vocational Expert's Testimony

Mendrick testified last at the hearing. Mendrick classified Menolascina's grinder and
polisher position as medium and unskilled, his forklift operator position as medium and
semiskilled, his laborer position as heavy and unskilled, his meat market position as light and
unskilled, his delivery truck driver position as medium and semiskilled, and his batch maker
position as medium to heavy and unskilled. (R. at 47-48.) When asked to name positions
available to an individual aged forty to forty-eight years with five years of education, no ability to
communicate in English, work experience as described above, the ability to lift twenty pounds
infrequently and ten pounds frequently, and the ability to walk or carry at 2.5 mph no grade or at
a slower speed with ten pounds or less, Mendrick answered, "Machine tender." (R. at 48-49.) If
the individual had to change positions every hour and perform only incidental walking with only
occasional bending, and no work in extremes of temperatures, then approximately 3800 machine
tender positions would be available. (R. at 49-50.) But if the individual had to change positions
every twenty minutes, then no machine tender position would be available. (R. at 50.) Upon
further questioning, Mendrick explained that a machine tender position would permit the

individual five days off per year for personal or sick leave. (R. at 50.)


and piriformis muscle. Straight leg raising was found to be negative. (R. at 179.) Menolascina's
gait showed a forward flexed pattern with forward flexion of the lumbar spine. (R. at 179.) Dr.
Eilers's impression was myofascial pain syndrome secondary to L5-S1 fusion. He recommended
that Menolascina begin physical therapy, take Elavil for pain, and remain off work. Dr. Eilers
opined that Menolascina could attain a sedentary work position, but no more than that. (R. at
179.)

Dr. Eilers examined Menolascina again on March 23, 1995. He indicated that
Menolascina was "a good candidate for probably work hardening in order to be able to return to
sedentary, light, and possibly some medium work levels." (R. at 177.) Menolascina was
showing progress with sitting and standing and his extent of pain was diminished. (R. at 177.)
Dr. Eilers recommended that Menolascina continue with physical therapy. He opined that
Menolascina should not return to the forklift operator position due to the frequent bouncing and
jarring associated with the work. (R. at 177.)

On April 7, 1995, Dr. Norman Aliga examined Menolascina. Dr. Aliga observed that
Menolascina had tenderness on moderate pressure to his lower back and minimal movement of
the lumbar spine. (R. at 230.) Dr. Aliga diagnosed Menolascina with back pain, weakness, poor
endurance, and tightness secondary to L5-S1 fusion. (R. at 230.) He recommended that
Menolascina continue with physical therapy, and he opined that Menolascina could return to
work as a forklift operator despite the bouncing and jarring associated with the work. (R. at
231.)

On April 25, 1995, Dr. Eilers noted that Menolascina was doing reasonably well and that

the goal was to advance Menolascina to a medium work parameter. (R. at 176.) On May 8,

-6-


complained of lower back and leg pain. Dr. Brackett observed limited range of motion of
Menolascina's back and left leg. (R. at 141-43.) An MRI showed disc narrowing at L5-S1.
(R. at 142.)

In April 1994, Dr. Brackett released Menolascina to return to work despite the fact that he
was still experiencing lower back pain. Dr. Brackett indicated that Menolascina's range of
motion was good and that he did not have any residual problems. (R. at 135.)

A May 1994 MRI showed desiccation of the L5-S1 disc and narrowing of the disk space.
No evidence of disc herniation or spinal stenosis was identified. (R. at 144.) Notes from
Dr. Lorenz dated from May 1994 to August 1994 revealed that Menolascina continued to
experience significant lower back pain. (R. at 194.)

On October 10, 1994, Menolascina was admitted to Hinsdale Hospital to undergo L5-S1
fusion. (R. at 149.) He was discharged five days later with instructions to take Tylox for pain.
(R. at 149.) Months later, Menolascina remarked that he no longer experienced any lower back
or leg pain. (R. at 193.) Dr. Lorenz felt that the fusion was a success and he placed Menolascina
in physical therapy. (R. at 193, 210-13.)

On March 9, 1995, Dr. Robert Eilers conducted an examination of Menolascina. At the
exam, Menolascina complained of lower back pain at night while changing positions and after
walking two or three blocks. (R. at 178.) Dr. Eilers noted that Menolascina's daily activities
were not significantly limited and that he last worked on March 24, 1993. (R. at 179.)
Menolascina had an essentially full range of motion except for the lumber spine, which was
limited to about forty degrees of forward flexion. (R. at 179.) Menolascina showed significant

myofascial tenderness over the lumbosacral paraspinals as well as over the thoracic paraspinals

-5-


Admittedly, the ALJ's decision contains very few citations to the record and oftentimes
the ALJ speaks in conclusory language that in the ordinary case, standing alone, would likely be
inadequate for purposes of conducting meaningful review. But the medical evidence in this case
points in one direction. And very little effort is needed to connect the ALJ's conclusions with her
corresponding explanations. Menolascina bombastically states, "Anyone reviewing this decision
would be at a loss to determine upon what specific evidence [the ALJ] based her conclusions."
(PI's Reply Mem. at 2.) Certainly if this were the case, a remand would be in order. Because it

is not, we dismiss Menolascina's argument that the ALJ committed legal error.

Cc Motion for Remand

Lastly, Menolascina asks this Court to remand the case to the ALJ for consideration of
additional evidence pursuant to 42 U.S.C. § 405(g). To obtain a remand pursuant to 42 U.S.C.
§ 405(g), a claimant must show that the additional evidence is new and material and that the
claimant had good cause for failing to submit the evidence to the administrative law judge during
the prior proceeding. Melkonyan y. Sullivan, 501 U.S. 89, 100-01 (1991); Sample v. Shalala, 999
F.2d 1138, 1144 (7th Cir. 1993). New evidence is evidence that was "not in existence or
available to the claimant at the time of the administrative proceeding." Sample, 999 F.2d at 1144
(quoting Sullivan v. Finkelstein, 496 U.S. 617, 626 (1990)). New evidence is material "if there is
a 'reasonable possibility’ that it would change the outcome" of the final decision. Nelson v.
Bowen, 855 F.2d 503, 506 (7th Cir. 1988). At a minimum, a showing of good cause includes
some explanation as to why the new and material evidence was not gathered at the proper time.

Watts v. Harris, 614 F.2d 515, 516 (1980).

-18-


experienced increased lower back pain with the change in the weather, which Dr. Eilers felt was
expected. (R. at 170.)

On December 7, 1995, Dr. Eilers averred that Menolascina probably would not be able to
perform his past work, but again Dr. Eilers recommended that Menolascina return to work in a
light duty position. (R. at 168.) This same recommendation was made by Dr. Eilers on
January 23, 1996, April 23, 1996, June 11, 1996, September 3, 1996, December 17, 1996, and
May 27, 1997. On each occasion, Dr. Eilers noted that Menolascina complained of lower back
pain. Dr. Eilers expected that Menolascina would always experience exacerbations and
remissions of lower back pain, and he explained that Menolascina would have to learn to modify
his lifestyle and tolerate the pain. (R. at 162-64.) Dr. Lorenz concurred. (R. at 192.)

In October 1998, Menolascina was involved in a vehicular accident and taken to Gottlieb
Memorial Hospital via ambulance. A physician diagnosed Menolascina with lumbar strain. An
x-ray was unremarkable other than that it revealed marked disc space narrowing at L5-S1. (R. at
181, 190.) Less than one month later, Dr. Lorenz examined Menolascina and had him x-rayed.
Dr. Lorenz concluded that Menolascina's fusion was solid with very little degenerative change
and no abnormalities. Neurologically, Menolascina was intact. (R. at 192.)

Dr. Patey recommended that Menolascina return to light work on March 4, 1999, based
on medical records and x-rays from Gottlieb Memorial Hospital. (R. at 196.) Dr. José Gonzalez
completed a Physical Residual Functional Capacity Assessment on March 11, 1999, without the
benefit of reviewing any treating or examining source statements regarding Menolascina's
physical capacities. (R. at 203.) Dr. Gonzalez diagnosed Menolascina with back pain. He

opined that Menolascina could occasionally lift and carry twenty pounds, frequently lift and carry

-8-


Minute Order Farm (06/97)

ee United States District Court, Northern District of Illinois

Name of Assigned Judge i Sitting Judge if Other
or Magistrate Judge Martin C. Ashman than Assigned Judge
CASE NUMBER 01 C 4935 DATE 4/23/2002
CASE Pasquale Menolascina vs. Jo Anne B. Barnhart
TITLE
[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
f ion bei ;
MOTION: of the motion being presented,}
DOCKET ENTRY:
qd) Oo Filed motion of [ use listing in “Motion” box above.]
(2) o Brief in support of motion due _
(3) Oo Answer brief to motion due. . Reply to answer brief due _
(4) Oo Ruling/Hearing on set for at
(5) O Status hearing[held/continued to] [set for/re-set for] on set for at
(6) Oo Pretrial conference[held/continued to] [set for/re-set for] on set for at :
(1) oO Trial[set for/re-set for] on at
(8) oO [Bench/Jury trial] [Hearing] held/continued to at
(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) (General Rule21 CIFRCP41(a)(1) [4 FRCP41(a)(2).
do) if [Other docket entry] | Enter memorandum opinion and order. Plaintiff Pasquale Menolascina’s
motion for summary judgment [6-1] and motion for remand are denied. Defendant Jo Anne B. Barnhart’s
motion for summary judgment [7-1] is granted. The Commissioner’s final decision is affirmed.
agp ff [For further detail see order attached to the original minute order.]
No notices required, advised in open court,
2
No notices required. umber of notes
V_ | Notices mailed by judge’s staff. APR 2 4 2002
Notified counsel by telephone.
Docketing to mail notices.
JY | Mail AO 450 form,
Copy to judge/magistrate judge.
courtroom
Is deputy’s
initials ———
Date/time:receiyed in, ; -]
central Clerk's Office mailing deputy initials



IV. Discussion

A. The ALJ's Step-Five Analysis

Menolascina’s principal argument on appeal is that the ALJ's finding that Menolascina
could perform a limited range of light work, thereby making him not disabled, is not supported
by substantial evidence. Substantial evidence is "such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401
(1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). It is more than a mere
scintilla of the evidence, but less than the greater weight of the evidence. Id; Young v. Sec'y of
Health & Human Servs., 957 F.2d 386, 389 (7th Cir. 1992). In determining whether substantial
evidence exists, the court cannot reevaluate the facts, reweigh the evidence, or substitute its own
judgment for that of the ALJ. Jones v. Shalala, 10 F.3d 522, 523 (7th Cir. 1993).

After careful review, we find that substantial evidence supports the ALJ's finding that
Menolascina could perform work as a machine tender, thereby making him not disabled. The
objective medical evidence evinces a history of significant back problems associated with
degenerative disease, yet the evidence is such that a reasonable person could find Menolascina
capable of performing a limited range of light work. Particularly, the opinions of Drs. Eilers and
Lorenz, Menolascina's treating physicians, from 1995 to 1998 provide strong support for
Menolascina's ability to perform a limited range of light work. Both physicians acknowledged
steady progress in Menolascina's condition, with an occasional aberration in 1995, and,
post-1995, they invariably recommended that Menolascina return to light work after each

evaluation, even after Menolascina sustained minor injuries in the 1998 vehicular accident.

-1l-


Til. The ALJ's Decision

In light of the testimony and evidence narrated above, the ALJ found that Menolascina
was not disabled. The ALJ determined that Menolascina was not engaged in substantial gainful
activity since March 24, 1993. Menolascina had a severe impairment of osteoarthritis in the
lumbar spine, but Menolascina's impairment did not meet or equal in severity any of the listings.
Although Menolascina could not perform his past relevant work, the ALJ concluded that
Menolascina was able to perform a limited range of light work, thereby making him not disabled.
(R. at 17-18.)

To arrive at this final conclusion, the ALJ discounted Menolascina's complaints of lower
back pain. Particularly, the ALJ pointed out that Menolascina's lower back pain "has never been
particularly significant according to the various treating physicians," that Menolascina took
nonprescription medicine to relieve his lower back pain, that Menolascina regularly visited with
friends and family, that the objective evidence did not provide strong support for Menolascina’s
complaints of disabling pain, and that no physician has ever found Menolascina to be disabled.
(R. at 14-15.) The ALJ also relied on evidence showing that Menolascina could sit, stand, or
walk for sixty minutes, lift twenty pounds occasionally, carry ten pounds, bend occasionally, but
not work in extreme cold. (R. at 13-14.) The ALJ determined that Menolascina could perform a
significant number of jobs in the national economy using the Medical-Vocational Guidelines as

a framework supplemented by the testimony of Mendrick. (R. at 16.)

-10-


1995, Wendy Diwik completed a Phase I Work Hardening Evaluation. Menolascina complained
of lower back pain and sacrum pressure, which he rated as an eight out of ten. (R. at 221.) Also,
Menolascina commented that he did not exercise at home prior to the exam because of increased
pain due to the weather. (R. at 221.) Diwik placed Menolascina on work hardening for two to
four weeks and opined that it was fair for Menolascina to return to work as a laborer secondary to
perceived pain. (R. at 222.) On May 30, 1995, Dr. Eilers noted that Menolascina might be
limited to performing sedentary work in light of Menolascina's constant complaints of lower back.
pain. (R. at 174.)

Diwik prepared a Functional Capacity Assessment Summary Letter in June 1995. She
found that Menolascina's trunk mobility had improved, but that he still was limited by lower back
pain. (R. at 223.) Menolascina also claimed to experience paresthesias of the left lower
extremity when standing greater than twenty minutes. Overall, Diwik opined that Menolascina's
endurance in terms of sitting, standing, walking, carrying, and lifting was adequate to complete
an eight-hour workday. Quality of motion was generally smooth. (R. at 224-25.) Diwik
recommended that Menolascina return to work at the light exertional level defined as lifting
twenty pounds infrequently, ten pounds frequently, walking and carrying at 2.5 mph with no
grade or at a slower speed with ten pounds or less, but felt that Menolascina could not return to
his past work as a laborer. (R. at 226.) On the last page of her letter, Diwik noted that
Menolascina reported driving his vehicle for forty-five minutes at a time. (R. at 228.)

On June 29, 1995, Dr. Eilers released Menolascina to light work as per Diwik's
recommendation. (R. at 172.) Approximately two months later, Dr. Eilers noted that

Menolascina was unable to find work within his functional limitations and that Menolascina

-7-


From 1977 to 1982, Menolascina worked at Brachs Candy as a batch maker. His work
duties included lifting and carrying containers of ingredients to make candies, pouring the
ingredients inside of the containers into other containers, placing candies into boxes, and lifting
and carrying boxes of candies, which weighed approximately fifty pounds. (R. at 33-34.) After
that, Menolascina worked at a meat market performing a range of tasks. He sliced meat, made
deliveries, loaded and unloaded trucks, and so on. (R. at 32.) Ordinarily, Menolascina worked
seventy hours per week. Occasionally, Menolascina lifted boxes weighing seventy pounds each.
(R. at 32.)

From 1987 to 1991, Menolascina worked at Marble Supplies International as a laborer,
loading and unloading trucks containing boxes weighing around fifty pounds. (R. at 30-31.) In
1992, Menolascina accepted employment at a factory as a forklift operator and grinder and
polisher of metal castings for car parts. (R. at 27.) As a forklift operator, Menolascina pushed
and pulled levers and used foot controls. (R. at 28.) The grinder and polisher position required
Menolascina to lift around thirty-five pounds and sit or stand for periods of time depending on
the work. (R. at 28.) Menolascina's last day of work at the factory was on March 24, 1993, due
to a back injury that he sustained while grinding and polishing castings on the job. (R. at 25-26.)

Since March 1993, Menolascina has experienced lower back pain that he believes
precludes him from working. (R. at 29.) He experienced lower back pain while supine, rising
from bed, standing, sitting, bending, and ambulating. (R. at 29, 30, 36-40.) Menolascina's lower
back pain bothered him every day all day long, but the amount of pain varied. For example,
when it was cold outside Menolascina's lower back pain would become worse. (R. at 36.) At

least once or twice per week, even more frequently when it was cold, Menolascina testified that

-3-


Here, the ALJ acknowledged that Menolascina would always experience exacerbations of
lower back pain that could not be completely alleviated with medication or surgery. She also
found that Menolascina's lower back pain affected his ability to work. This reality was well
documented throughout the record. In light of Menolascina's daily activities such as regularly
visiting with friends and family, Menolascina's use of Motrin or Tylenol rather than prescription
medication for pain, and the objective medical evidence in the record, however, the ALJ did not
credit Menolascina's statements that he suffered from disabling lower back pain.

Contrary to Menolascina's assertions, we find that all three reasons are appropriate and
adequately explained by the ALJ to support his credibility finding. Menolascina drove his car at
least two times per week to the Italian Club to visit with friends, read newspapers, or watch
soccer games. He also regularly visited with family, went shopping, ran errands, and watched
children. Occasionally, he would walk for five blocks for exercise or go out to eat. Although
Menolascina testified at the hearing that he did not do any household chores due to back pain, he
indicated on his daily living questionnaire that he did not do any household chores prior to
sustaining his back injury because his wife did them. (R. at 117.) Considering these activities as
a whole, and under the circumstances of this case, we believe that this evidence provides some
support for the ALJ's credibility finding. See Luna, 22 F.3d at 691; Pope, 998 F.2d at 487;
Baber, 756 F. Supp. at 399-400; of Zurawski, 245 F.3d at 887-88; Clifford v. Apfel, 227 F.3d
863, 871-72 (7th Cir. 2000).

We also believe that Menolascina’s reliance on Motrin or Tylenol to alleviate his pain
provides support for the ALJ's credibility finding. The use of less potent analgesics such as

Tylenol and Motrin suggests that Menolascina did not suffer from disabling lower back pain.

-14-


that Menolascina return to light work despite his lower back pain, too. (See R. at 15 ("[T]he
record does not contain any opinions from treating or examining physicians indicating that the
claimant has limitations greater than those determined in this decision.").)

In light of the foregoing, the ALJ properly dismissed Menolascina's claim of excessive
absenteeism. As the ALJ did not fully credit Menolascina's complaints of pain, the ALJ was not
required to accept Menolascina’s testimony that at least two days per week he could not do
anything. See Barnett, 231 F.3d at 690. The only evidence of possible absenteeism was from
Menolascina himself. However, as the ALJ pointed out, all of the other evidence belies this
claim. We note that Diwik commented on Menolascina's excellent attendance at work
hardening. (R. at 224.) Apparently, Menolascina had no problem maintaining his daily and
weekly exercise regimens. (R. at 160-77.)

In sum, the ALJ's credibility finding was neither patently wrong as per the generous
standard of review confirmed in Herron nor was it inadequately explained as per the
requirements contained in SSR 96-7p. Though not an exemplar, the ALJ's credibility finding met
the mark. Menolascina raises no challenge as to the ALJ's reliance on Rule 202.16 of the
Medical-Vocational Guidelines coupled with Mendrick's testimony. For the sake of
completeness, we hold that this reliance was proper, and therefore, we affirm this aspect of the
ALJ's step-five analysis as well. See Cass v. Shalala, 8 F.3d 552, 556 (7th Cir. 1993) (finding
that the hypothetical question need only incorporate limitations that are established by the
evidence); Ortiz v. Chater, 986 F. Supp. 479, 490 (N.D. Ill. 1997) (finding that the existence of

2000 jobs constituted a significant number of jobs).

-16-


I. Procedural Background

Menolascina filed an application for DIB on January 12, 1999, alleging that he became
disabled on March 24, 1993, due to a back injury. (R. at 78, 98.) The Social Security
Administration denied Menolascina's application initially and upon reconsideration. (R. at
52-53.) On April 29, 1999, Menolascina requested a hearing before the ALJ to challenge the
denial. (R. at 63.)

The hearing before the ALJ took place on August 11, 1999, at which the ALJ elicited
testimony from Menolascina, through an interpreter, and Frank Mendrick, a vocational expert.
(R. at 19.) Menolascina was represented by counsel at the hearing. After considering the
testimony and the medical evidence, the ALJ concluded that Menolascina was not disabled.
(R. at 17-18.)

On September 30, 1999, Menolascina appealed the ALJ's decision to the Appeals
Council. (R. at 9.) The Appeals Council declined to review the ALJ's decision, thereby making
the ALJ's decision the final decision of the Commissioner. Menolascina now seeks judicial

review of that decision pursuant to 42 U.S.C. § 405(g).

Il. Factual Background
A. Menolascina's Testimony
Menolascina was born in Italy on December 27, 1952, making him forty-six at the time of
the hearing. (R. at 24.) He attended school in Italy through the fifth grade. (R. at 26.) Although
he emigrated to the United States in 1977, he could not read, write, or understand English. (R. at

26-27.)


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

PASQUALE MENOLASCINA,

Plaintiff,

Magistrate Judge
Martin C. Ashman

v.

JO ANNE B. BARNHART,
Commissioner of Social Security,

SSS SS SS SH DLS

Defendant.

MEMORANDUM OPINION AND ORDER

Pasquale Menolascina seeks judicial review of the Commissioner's final decision denying
Menolascina's application for Disability Insurance Benefits ("DIB"). Menolascina contends that
the Commissioner's decision should be set aside because substantial evidence does not support
the Administrative Law Judge's (the "ALJ") finding that Menolascina could return to work as a
machine tender, and because the ALJ failed to address evidence favorable to Menolascina.
Menolascina further argues that this case should be remanded to the ALJ for consideration of
additional evidence pursuant to 42 U.S.C. § 405(g). For the following reasons, this Court denies
Menolascina's Motion for Summary Judgment and Menolascina's Motion for Remand. The final

decision of the Commissioner is affirmed.!

' The parties have consented to have this Court conduct any and all proceedings,
including the entry of final judgment. See 28 U.S.C. § 636(c); Local R. 73.1(b).


Additional support for Menolascina's ability to perform a limited range of light work
comes from Dr. Aliga, who opined that Menolascina could return to his prior position as a
forklift operator. It especially comes from Diwik’s Functional Capacity Assessment, which was
based on tests completed by Menolascina over a two-day period. Diwik noticed improvement in
Menolascina's trunk mobility and determined that Menolascina's endurance in terms of sitting,
standing, walking, carrying, and lifting was adequate to complete an eight-hour workday. Diwik
opined that Menolascina could lift twenty pounds infrequently, ten pounds frequently, walk and
carry at 2.5 mph with no grade or at a slower speed with ten pounds or less. This opinion was
fully adopted by Drs. Eilers and Lorenz and the ALJ.

Dr. Patey's 1999 recommendation provides further support for Menolascina’s ability to
perform a limited range of light work. Lastly, Dr. Gonzalez's Physical Residual Functional
Capacity Assessment provides the same. Dr. Gonzalez determined that Menolascina could
occasionally lift and carry twenty pounds, frequently lift and carry ten pounds, stand or walk for
about six hours in an eight-hour workday, sit for about six hours in an eight-hour workday, push
or pull without limitation, and climb, stoop, kneel, and crawl occasionally. Stating the obvious,
as a whole, the objective evidence greatly favors the ALJ's finding that Menolascina could
perform a limited range of light work. There is practically nothing in the way of objective
evidence to counter the ALJ's finding.

Menolascina claimed that he experienced exacerbations of pain that precluded him from
performing any type of work, but the ALJ concluded that Menolascina's statements of pain were
exaggerated and hence not fully credible. A credibility finding will not be disturbed unless it is

patently wrong. Luna v. Shalala, 22 F.3d 687, 690-91 (7th Cir. 1994); Pope v. Shalala, 998 F.2d

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Barnett v. Apfel, 231 F.3d 687, 690 (10th Cir. 2000); Luna, 22 F.3d at 691. While Menolascina
claimed that he did not take certain prescription medicine because it upset his stomach, this has
no effect on the inquiry of whether Menolascina's lower back pain rendered him unable to work.
See DeFrancesco v. Bowen, 867 F.2d 1040, 1043 (7th Cir. 1989) ("If the claimant has
inexcusably refused to follow prescribed medical treatment that would eliminate his total
disability, then he isn't totally disabled."). We recognize that Dr. Eilers stated that no medicine
would completely alleviate Menolascina's lower back pain, but this does not necessarily mean
that no medicine, prescription or otherwise, would lessen Menolascina's pain. Indeed, in

April 1995 Menolascina was better able to manage his lower back pain with Elavil. (R. at 176.)
On Menolascina's 1999 pain questionnaire, he indicated that when he took Motrin his lower back
pain went away, even though at the hearing he testified that Motrin did not relieve his lower back
pain. (R. at 36-37, 115.)

Finally, we agree with the Commissioner that the medical evidence overwhelming
supports the ALJ's credibility finding. Drs. Eilers and Lorenz, both of whom were familiar with
Menolascina’s lower back pain, recommended that Menolascina return to light or sedentary work.
They both acknowledged Menolascina's pain, but felt that it was expected or within normal
limits, surely not of a disabling nature. (R. at 162-64, 192.) In her Functional Capacity
Assessment Summary Letter, Diwik recommended the same. Diwik made this assessment after
observing Menolascina perform a variety of tasks over a period of two days. The only pain
behavior observed by Diwik was Menolascina's flexing of his left knee after squatting and
Menolascina’s complaining of paresthesia and shifting of weight during standing and one time

during sitting and kneeling. (R. at 224.) All of the other physicians in the record recommended

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