Allen G. Stark v. Michael J. Astrue

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued April 23, 2008
Decided May 16, 2008
Before
RICHARD D. CUDAHY, Circuit Judge
JOHN L. COFFEY, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 07‐2148
ALLEN G. STARK,
Plaintiff‐Appellant,
v.
MICHAEL J. ASTRUE,
Defendant‐Appellee.
Appeal from the United States District
Court for the Western District of
Wisconsin
No. 06‐C‐052‐C
Barbara B. Crabb,
Chief Judge.
O R D E R
Allen G. Stark applied in July 2001 for disability insurance benefits and
supplemental security income payments, claiming he was unable to work because of pain
and arthritis in his foot, legs, and lower back. See 42 U.S.C. §§ 416(I), 423(d), 1382c(3)(A).
His claim was denied initially and upon reconsideration; Stark then requested a hearing
before an Administrative Law Judge. The ALJ denied Stark’s claim, finding that he could
perform unskilled sedentary work with certain limitations. The district court concluded
that the ALJ’s decision is supported by substantial evidence. Stark now argues that the
ALJ’s findings regarding Stark’s ability to work are not supported by substantial evidence.
Stark also contends that the ALJ ignored evidence in the record that would support a
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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determination of disability due to fibromyalgia. Because substantial evidence supports the
ALJ’s decision, we uphold the denial of benefits.
At the time of his benefits hearing in October 2004, Stark was 46 years old. Stark
stated in his application for benefits that he completed the 12th grade, but at his hearing he
testified that he went to school only through the 11th grade. After leaving school, Stark
entered the Army in 1977 and served for less than three weeks before he was medically
discharged. His discharge was apparently caused by an ankle injury that he sustained
during basic training. After leaving the military, Stark had jobs as a janitor, agricultural
laborer, lumberyard rip saw operator, construction laborer, factory worker, and barge
worker, with a period of unemployment between 1990 and 1993. Stark’s janitorial duties
included sweeping, mopping, taking out garbage, cleaning bathrooms, buffing floors, and
washing windows and furniture. Stark reported nearly continuous full‐time employment
from April 1996 until December 1999. After that he had a few sporadic, short‐term jobs
which he left because of his health problems. Stark represented in his application that he
stopped working altogether in May 2001, but he testified before the ALJ that he did not
work after January 1, 1999.
Stark asserted an onset date of January 1, 1999. He stated in his application that his
ability to work is limited by the following conditions: posterior tibial tendon dysfunction,
characterized by pain and swelling in the ankle that can develop into flat feet, weakness,
and an inability to stand on the toes; subtalar arthritis, or arthritis in the ankle bone; arthritis
in the lower back; and tendonitis in both legs. Stark asserted that he was unable to sit,
stand, walk, or lift items for more than 10 minutes at a time.
Unless otherwise noted, all of the medical evidence is drawn from treatment records
rather than live testimony. In December 1998 Stark began to seek care at the Veterans
Administration Medial Center in Tomah, Wisconsin, complaining of chronic problems with
his right ankle. Dr. Dale Wicklund examined him and surmised that the ankle problems,
which included pain, swelling, and abnormal gait, could be related to the injury Stark had
sustained in the Army. Wicklund also noted degenerative changes in other joints and
prescribed Ibuprofen as well as an orthopedic consultation. Stark apparently did not seek
treatment again until October 1999, when he was seen by Dr. Maynard K. Pang at the VA.
Pang noted that Stark was still experiencing ankle pain and swelling and walked with a
limp. Pang observed that this could be due to a hairline fracture or damage to the cartilage
and instructed Stark to consult the orthopedic clinic and use crutches until told otherwise.
He prescribed Percocet for pain management.
Stark saw Dr. Michael D. Lamson at the orthopedic clinic later that same month.
Stark explained to Lamson that he had sustained an ankle injury during basic military

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training and had been experiencing pain ever since. Lamson observed tenderness along the
length of Stark’s tibial tendon and pain with ankle movement. He noted that Stark was
unable to complete a single heel raise and had a limited range of motion through his right
ankle. Lamson could not make a definitive diagnosis of the cause of the pain and therefore
ordered a CT scan and also instructed Stark to get a UCBL (University of California
Biomechanics Laboratory) shoe insert.
The following month, November 1999, Stark returned to the VA after he fell off the
roof at work that morning, hitting his head, right hand, and elbow. Dr. Myrna I. Munoz
examined Stark and learned that he had consumed five to six mixed drinks plus five to six
beers the previous night. Stark reported extreme pain. Munoz observed swelling and
bruising in various areas. She gave Stark pain medication and a sling and a splint for a
probable fracture in his hand.
A few days later, Stark returned to the orthopedic clinic and again saw Dr. Lamson.
Lamson noted that Stark had been “ambulating without difficulty” and placed his fractured
hand in a cast. Lamson also noted that Stark had not gotten the shoe insert. In February
2000 Stark visited the VA again. Dr. Wicklund concluded that Stark’s “only problem is his
ankle injury which he sustained during basic training.” Wicklund observed that Stark was
limping, causing other joints to ache.
Then in March 2000 Stark saw a physical therapist, Abdurahman Omar, who
recorded that Stark was experiencing “severe” foot and ankle pain that was interfering with
his sleep. Omar prescribed use of a short‐leg walking boot for four weeks and a gait aid if
needed.
In May 2000 Stark called the orthopedic clinic and spoke with a nurse, Caryn Grady,
about pain and swelling in his ankle and difficulty walking. Stark then returned to
Dr. Wicklund in August 2000. Wicklund reaffirmed that the major diagnosis he was
following was “chronic ankle pain.” Wicklund concluded that Stark’s old injury was now
affecting his lower back and knee because of his limping. Wicklund prescribed continuing
Stark on his pain medications.
In February 2001 Stark sought the advice of Dr. Boyd C. Lumsden at the orthopedic
clinic. Lumsden recorded in his progress notes Stark’s history of worsening right ankle
pain, which Lumsden attributed to his military injury that was never properly treated.
Lumsden noted that the injury was “significantly impacting” Stark’s daily life and that he
had recently quit a factory job (this was two years after, according to his hearing testimony,
Stark had stopped working) because he was unable to tolerate prolonged standing.
Lumsden’s examination revealed that Stark was unable to perform heel raises on the right

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side and could not toe walk at all. Lumsden identified tenderness, diminished range of
motion, and significant pain. After examining X‐rays and CT scan results, Lumsden
observed evidence of arthritis, deformity, and an old fracture. Lumsden discussed the
UCBL shoe insert again with Stark, who reportedly thought that it would not help.
Lumsden also suggested surgery, but Stark was not interested. Lumsden counseled that
Stark was not going to get better unless he agreed to pursue one of these two options.
Lumsden told Stark that it was his opinion that Stark’s problems “could, in fact, be related
to a previous service injury, although I do not feel it would be related to any other more
systemic complaints and that this is strictly an ankle injury not related to back pain or any
other problems.”
The next month, Stark returned to Omar, the physical therapist, in order to get fitted
for an orthotic that would support his ankle and foot. In April, Stark met Dr. Brian E. Koch
for a follow‐up orthopedic appointment. Stark told him that the orthotic made his foot feel
better at times, but for the most part did not seem to fit him well and caused discomfort.
Koch noted that Stark again said he was not interested in surgery. Koch recommended
trying a new orthotic that would fit him better, but there is no indication in the record that
Stark followed up on Koch’s advice.
Stark continued to experience problems using the orthotic, and by July 2001 he had
stopped using it. At that time he saw nurse Sue Ellen Eugster at the orthopedic clinic for a
follow‐up appointment. Eugster summarized Stark’s history, noting that his Army injury
apparently contributed to his ongoing ankle pain. Eugster noted that Stark’s condition was
essentially unchanged from recent evaluations. Her impression was that Stark suffered
from a bilateral foot deformity with posterior tibial tendon dysfunction and subtalar
degenerative joint disease. However, Eugster noted that she was “concerned about his
multiple MS [musculoskeletal] complaints and wonder if he may have a more systemic
process occuring [sic] /possibly fibromyalgia.” She thought a referral to the rheumatology
clinic could be helpful. This is the first mention of fibromyalgia in the record.
The following month (with his disability application now pending) Stark saw
Dr. Wicklund for an annual preventative health screening and reported “shooting pain”
from his right ankle up into his knee, as well as aching back, joints, and muscles. Stark said
he had been bitten by a tick four times the previous spring. Wicklund noted that Stark had
been turning to alcohol to manage his pain because Ibuprofen was not helping. Wicklund
assessed Stark’s condition as “chronic pain syndrome, with degenerative disease in the
ankle.” Wicklund ordered a test for Lyme disease as well as a new pain medication.
In October 2001 Dr. Pat Chan, a state disability agency consulting physician,
completed an assessment of Stark’s residual functional capacity. Chan diagnosed ankle

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degenerative joint disease, noting that this likely resulted from Stark’s military injury. He
concluded that Stark could lift and carry 10 pounds occasionally and less than 10 pounds
frequently and could stand or walk or both for a total of two hours and sit for a total of six
hours in an eight‐hour workday. This form was reviewed and signed without changes by
another state disability agency consulting physician, Dr. Robert Callear, in April 2002.
Stark visited the VA rheumatology clinic in October 2001 and met with Dr. Eric C.
Gowing. Gowing noted Stark’s history of ankle and lower back pain and ordered X‐rays,
which turned out to be normal. At a follow‐up visit, Gowing observed diffuse tenderness in
Stark’s right ankle and ordered a chest X‐ray and other laboratory tests to diagnose Stark’s
musculoskeletal complaints. In December Stark underwent magnetic resonance imaging of
his right foot and ankle, which showed severe degenerative changes in the middle facet of
the ankle joint, but that the ligament structure and soft tissues were normal. During a
follow‐up visit in January 2002, Gowing noted that Stark had still not scheduled the X‐rays
and other tests he had ordered the previous fall. Gowing explained to Stark that he still did
not have a diagnosis for his musculoskeletal complaints and that Stark had to undergo the
required tests. During a visit later the same month, Stark tested positive for Lyme disease
and also reported pain in his wrists, elbows, knees, hips, and ankles with prolonged
morning stiffness. Gowing noted that Stark’s Lyme disease had been active for a prolonged
period, approximately nine months, and that some of his “symptoms may be related to
fibromyalgia which is associated with Lyme disease and may not respond to treatment
with” his prescribed medication.
In July 2002 Stark was examined by a resident, Julie Hildebrand, in the
rheumatology clinic. By then his application for benefits had been denied initially and on
reconsideration. Hildebrand noted that Stark continued to experience debilitating pain and
fatigue despite treatment. He complained of swelling and pain in his right ankle and lower
back pain, but no longer any stiffness. Stark gave her a form to fill out related to his
application for social security benefits; Hildebrand did not complete the form because it
“relate[d] to rheumatoid arthritis, a disease which the patient does not have” and instead
answered the appropriate questions in her progress notes. Hildebrand diagnosed a history
of Lyme disease, which had been treated, and severe degenerative arthritis of the ankles and
lumbar spine, and predicted that Stark would “likely not recover function from his current
state.” She stated that Stark’s pain and fatigue would interfere with his attention and
concentration to perform even simple work tasks on a daily basis for two to three hours.
She suggested the following work restrictions: no walking; sit 30 minutes then must stand;
stand 30 minutes then must sit; sit and stand for a total of about two hours in an eight‐hour
work day; slight elevation of legs with prolonged sitting; unscheduled breaks of 15 minutes;
use of a cane; lift less than 10 pounds occasionally and never 10 pounds or more; and never
twist, bend, or stoop. Finally, Hildebrand noted that some of Stark’s symptoms “may be

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related to fibromyalgia which is associated with Lyme disease (fatigue).” The
administrative record does not show that Stark sought any further treatment for his
physical symptoms before his hearing before an ALJ in 2004.
In early 2003 Stark was charged with battery and bail jumping, related to troubles
with his girlfriend. He was placed in Mendota Mental Health Institute from March 2003
until August 2003 for treatment to attain competency. Stark was ultimately found
competent, convicted, incarcerated, and released in February 2004. During his stay in
Mendota, Stark was evaluated and treated for depression, mood swings, and paranoia.
Because Stark does not now argue that he has a disabling mental condition, his mental
health assessments have no bearing on his present claim for social security benefits, except
for one surprising feature: they reveal that Stark played volleyball with the other residents
of Mendota. Records from March 2003 indicate that Stark’s flat affect became brighter when
he was involved in activities that he enjoyed, including “volleyball, gross motor activities.”
A record from May 2003 states that Stark demonstrated “a competitive edge in all‐unit
volleyball when he got angry at his peers who would miss the ball.”
In October 2004 the ALJ conducted Stark’s hearing. Stark testified, along with Allen
Hauer, Ph.D., an impartial medical expert, and Richard Willette, an impartial vocational
expert. Stark told the ALJ that he lived with his mother who did most of the cooking and
cleaning, with hired help. Stark also reported that he could drive a car only for 20 to 25
minutes due to his ankle condition. Stark agreed that he could sit for 30 minutes at one time
and then needed to stand, and likewise that he could stand for 30 minutes and then need to
sit. Stark, however, said that he could sit, stand, or walk for less than two hours in an eight‐
hour workday because the pain in his legs, ankle, and back had increased since he applied
for benefits. Stark agreed that he would need to take unscheduled 15‐minute breaks during
a workday. Stark agreed that he could lift less than 10 pounds occasionally but said that he
would need to elevate his legs for more than half of the workday because his pain had
gotten worse.
It appears that after Stark’s application for benefits was denied on reconsideration,
he added a new claim for benefits on the basis of mental impairment, but the record is
unclear on this point because a copy of Stark’s request for an administrative hearing was
not included in the record. Dr. Hauer testified, therefore, regarding Stark’s history of
mental illness and applied listing of impairments 12.04, 12.08, and 12.09 for mental
disorders. Dr. Willette testified regarding Stark’s previous work as a janitor and factory
worker and said that he had no transferable skills. Willette testified that the following jobs
in Wisconsin would fit within the limitations of sedentary work with a sit‐stand option and
limited contact with the public: sedentary assembler (6,000); production inspector, checker,
and examiner (1,000); sedentary hand packager (150); and general office helper (6,000). In

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response to the ALJ’s inquiry, Willette testified that these jobs corresponded to the
definitions in the Dictionary of Occupational Titles (DOT). Stark’s attorney asked Willette
to assume the following hypothetical: a person who is able to sit for only 30 minutes at a
time, then must stand; stand for only 30 minutes at a time, then must sit; sit, stand, or walk
for a total of two hours in an eight‐hour workday; needs daily unscheduled breaks of 15
minutes; after prolonged sitting, must elevate his legs six inches; and in a sedentary job,
must elevate his legs 50% of the time. Willette testified that such a person would not be able
to perform any of the previously identified jobs because anything beyond two 15‐minute
breaks and a half‐hour lunch break would not be permitted.
The ALJ denied Stark’s claim, finding that although Stark could no longer perform
any of his past work, he could still perform unskilled sedentary work with limited contact
with the public or supervisors and with the ability to change sit/stand positions as needed.
The ALJ analyzed Stark’s claim using the five‐step process laid out in 20 C.F.R. §§ 404.1520,
416.920. Because Stark had possibly engaged in substantial gainful activity after his alleged
onset date, the ALJ reserved ruling on step one. The ALJ also concluded that Stark did have
severe impairments: degenerative joint disease of the right ankle, some degenerative
changes predominating at L2‐3, affective disorders, personality disorders, and a history of
drug or alcohol abuse or both in possible current remission. However, the ALJ concluded
that none of these conditions met any impairment listed in 20 C.F.R. 404, Subpart P,
Appendix 1, Regulation No. 4.
At step four, the ALJ determined Stark’s residual functional capacity, considering
both Stark’s subjective complaints as well as the medical record. In making these findings,
the ALJ placed great weight on the agency medical consultants, Drs. Chan and Callear, and
less weight on Dr. Hildebrand’s report on Stark’s limitations. The ALJ noted that
Hildebrand relied heavily on Stark’s subjective report of symptoms and limitations and
seemed to uncritically accept what he said as true. The ALJ observed that Stark consulted
medical resident Hildebrand not for the sake of treatment but in order to obtain a social
security benefits report. The ALJ also concluded that Stark was exaggerating his physical
limitations when he saw Hildebrand, since the rest of the medical record does not support
her more extreme conclusions and, in fact, he was able to play volleyball not long after. The
ALJ noted other grounds for doubting Stark’s credibility, including his inconsistent
information about how much school he completed, his history of criminal conduct and
incarceration, his testimony that he had not worked since January 1, 1999, and reports of
possible malingering at various points in the medical record. The ALJ also apparently did
not believe Stark’s account of dramatically worsening pain, stating instead that Stark’s
symptoms had been present before his alleged disability onset date, and he was still able to
work at that time. The ALJ further observed that Stark had not received the type of medical
treatment a totally disabled individual would be expected to require; for example, there

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were significant gaps in Stark’s medical history and evidence of his failure to follow‐up on
recommended treatments.
The ALJ concluded that Stark lacked the ability to perform his past relevant work,
and noted that the burden shifted to the Social Security Administration to show that there
are other jobs existing in significant numbers in the national economy that he could
perform. The ALJ adopted the vocational expert’s testimony regarding work that was
available to Stark.
On appeal Stark first challenges the ALJ’s findings regarding the availability of work
that he is qualified for and capable of performing. Stark contends that the testimony of
vocational expert Willette was so inadequate that the ALJ’s decision, which relied on it, is
not based on substantial evidence. Stark asserts that the jobs Willette listed are “not specific
occupations but broad categories” and do not reflect the specific occupations listed in the
DOT. Stark contends that it is not enough for an ALJ to ask a vocational expert whether his
testimony corresponds to the DOT; even if an ALJ receives an affirmative response,
according to Stark, the ALJ should investigate and resolve any “apparent conflicts,” such as
the one that, he argues, is presented in this case.
SSR 00‐4p requires an ALJ to ask a vocational expert about any possible conflicts
between his testimony and the DOT and to elicit reasonable responses for any discrepancy.
Prochaska v. Barnhart, 454 F.3d 731, 735 (7th Cir. 2006). Stark acknowledges that the ALJ
satisfied the first component of this ruling by asking Willette whether his testimony
corresponded to DOT definitions. Stark contends that, even though Willette stated that his
testimony was consistent with the DOT, the ALJ should have inquired further into specific
characteristics of the jobs Willette listed. We have never held that ALJs have any such
further requirement. Instead, we stated in Prochaska that if the VE’s evidence “appears to
conflict with the DOT, the adjudicator will obtain a reasonable explanation for the apparent
conflict.” Id. Willette’s testimony does not present any apparent conflict with the DOT, and
so the ALJ had no reason to doubt his assurance that the jobs he described corresponded to
the DOT definitions. It was only after the hearing that Stark asserted that there was a
potential conflict between Willette’s testimony and the DOT definitions. Although Stark’s
attorney took the opportunity to ask Willette a hypothetical after his testimony, Stark’s
attorney did not conduct any further cross‐examination. For example, Stark’s attorney did
not ask Willette to explain the job requirements in more detail or ask the ALJ to keep the
record open so that he could cross‐check the jobs Willette identified with the DOT. See
Britton v. Astrue, No. 07‐1547, 2008 U.S. App. LEXIS 7659, at *11 (7th Cir. Apr. 10, 2008)
(maintaining that VE’s “bottom line” must be “available on demand”). Absent any
apparent conflict, the ALJ satisfied his duty when examining the vocational expert. See
Donahue v. Barnhart, 279 F.3d 441, 446 (7th Cir. 2002) (“[A]n expert is free to give a bottom

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line, provided that the underlying data and reasoning are available on demand.”); Powers v.
Apfel, 207 F.3d 431, 436‐37 (7th Cir. 2000) (stating that ALJ is permitted to rely on expert
testimony even if it contradicts DOT). Although Stark insists that Willette’s testimony
presents a conflict with the DOT, his brief fails to elucidate any such conflict. Therefore,
there was no error in the ALJ’s reliance on Willette’s testimony.
Next Stark argues that the ALJ erred by not discussing Stark’s alleged fibromyalgia
and related functional limitations. Stark asserts that he tested positive for Lyme disease and
that two physicians noted in the record that there could be a possible link to fibromyalgia.
We will not overturn the ALJ’s determination in a Social Security case if it is
supported by substantial evidence. Schmidt v. Astrue, 496 F.3d 833, 841‐42 (7th Cir. 2007).
The ALJ need not address every piece of evidence in the record—it is enough to “build a
bridge” from the evidence to the conclusion. Sims v. Barnhart, 309 F.3d 424, 429 (7th Cir.
2002). It is especially hard to succeed in arguing that the ALJ failed to properly weigh
evidence because we may not substitute our own judgment for the ALJ’s on matters of
credibility, weight of evidence, or conflicting evidence. White v. Barnhart, 415 F.3d 654, 659
(7th Cir. 2005). ALJs, however, may not substitute themselves for doctors and may not
make medical determinations. See Smith v. Apfel, 231 F.3d 433, 437 (7th Cir. 2000); Scivally v.
Sullivan, 966 F.2d 1070, 1077 (7th Cir. 1992).
Stark did not claim fibromyalgia in his disability application, nor did he raise the
condition in his request for reconsideration or at his hearing. Despite Stark’s assertions to
the contrary, fibromyalgia was never conclusively established by any health‐care provider
who examined Stark. And even given that there was some evidence, however sparse, of
fibromyalgia in the record, the ALJ considered all of the relevant evidence in his decision
and did not ignore Stark’s musculoskeletal complaints. The ALJ quoted, for example, Nurse
Eugster’s comment that fibromyalgia was a possibility and also addressed Stark’s Lyme
disease. The ALJ’s passing reference to the possibility of fibromyalgia accurately reflects the
limited references to this condition in the record. Moreover, the record states that Stark’s
Lyme disease had been treated; therefore, the ALJ’s decision not to discuss it as a continuing
limitation was supported by substantial evidence. The ALJ fully recognized the diagnoses
that are supported in the record when he determined that Stark was only capable of
performing sedentary work with limitations.
AFFIRMED.

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