                           In the

United States Court of Appeals
              For the Seventh Circuit

No. 07-3272

B RIAN L. K ETELBOETER,
                                              Plaintiff-Appellant,
                               v.

M ICHAEL J. A STRUE,
                                             Defendant-Appellee.


           Appeal from the United States District Court
              for the Western District of Wisconsin.
            No. 07-C-082-S—John C. Shabaz, Judge.



  A RGUED S EPTEMBER 10, 2008—D ECIDED D ECEMBER 15, 2008




 Before C OFFEY, R IPPLE, and M ANION, Circuit Judges.
  C OFFEY, Circuit Judge. Brian Ketelboeter applied for
disability insurance benefits, claiming that he was
unable to work due to chronic pain. After conducting a
hearing the ALJ denied benefits based on his finding
that, although Ketelboeter could not return to his past
work, he could perform a significant number of other
jobs available. The district court found that substantial
evidence supported the ALJ’s conclusion. On appeal
Ketelboeter argues that the ALJ improperly discounted
2                                              No. 07-3272

the opinion of his treating physician and failed to
consider his mental health disabilities. Because the ALJ’s
decision is supported by substantial evidence, we affirm.


                       Background
  Ketelboeter, who is 53 years old, began working as a
truck driver in 1988, and he was injured and claimed that
in 1995, a pulley struck his rib cage while he was securing
lumber onto the trailer of a truck. His family physician,
Dr. David F. Cook, diagnosed him with a sprained rib
and recommended that he wear a rib belt for support
and undergo physical therapy treatments, which he
failed to pursue. Ketelboeter also received chiropractic
treatment in 1996 and 1997, for neck, chest, and back pain.
In early 1997, Ketelboeter again complained of rib
pain with soreness in his neck and back. A bone scan,
chest x-ray, and blood tests revealed no problems, even
though an emergency-room doctor diagnosed him with
a chest-wall sprain with spasms. Later on, Ketelboeter
fell and bruised his shoulder. Thereafter he received
treatment for his pain frequently from Dr. Richard J.
Horecki, while undergoing treatment for his chest and
rib pain throughout that year. Dr. Horecki prescribed
steroid anti-inflammatory drugs and in January 1998,
diagnosed that he was suffering from costochondritis,
an inflamation of cartilage “where the rib and breast-
bone [sternum] are joined.” (Mayo Clinic, http://
www.mayoclinic.com/health/costochondritis/DS00626
(visited Aug. 18, 2008)).
 In early 1998, Ketelboeter saw Dr. Tuenis D. Zondag,
who recommended that he receive injections and physical
No. 07-3272                                               3

therapy to treat his pain. Ketelboeter attended physical-
therapy sessions, but refused to accept the prescribed
injections. Instead he was attempting to manage his
pain with walking and aerobic exercise—a program
that previously had provided him with some relief.
Throughout 1998 and 1999, Drs. Horecki, Zondag, and
Cook also treated Ketelboeter’s chronic pain with
ibuprofen and Tylenol 3.
  In 2000, an MRI showed a flattening and deformity of his
spinal chord accompanied with a stenosis, disk protrusion,
degenerative changes, and osephyte formation. After
complaining that his chest wall was giving him pain
and discomfort, Dr. Zontag prescribed Ultram (a pain-
killer) and Volatren (an anti-inflammatory medication),
though Ketelboeter complained that the medications
were less than effective in relieving his pain. In May 2001,
Dr. Zondag observed that Ketelboeter had reduced toler-
ance for sitting and standing and he would need accom-
modations to alternate between those positions.
  In February 2002, Ketelboeter saw another doctor,
Dr. Erik Dickson, who noted that physical therapy
together with Flexeril, a muscle relaxant, had relieved
his pain. Dr. Dickson continued to treat Ketelboeter with
ibuprofen and Flexeril and did not see him again until
Ketelboeter reinjured himself one year later. Dr. Dickson
once again prescribed Flexeril and Ketelboeter reported
some improvement.
  Although Ketelboeter worked for eight years after his
injury, in June 2003, he stopped working because, he says,
the pain in his rib cage was radiating into his sternum,
4                                               No. 07-3272

shoulders, and arms, preventing him from doing his
job. Dr. Dickson examined Ketelboeter again in Septem-
ber 2003. He opined that he did not know what was
wrong with Ketelboeter, but that his alleged “pain
[was] out of proportion with his physical findings.”
Ketelboeter’s x-rays and bone scans were negative, and a
rheumatologist found no evidence of rheumatic disease
despite a small positive rheumatoid factor in his blood.
The rheumatologist diagnosed Ketelboeter as having rib
tip syndrome (rib pain), xiphodynia (sternum pain), and
history consistent with rotator-cuff disease, and prescribed
Vioxx, which Ketelboeter did not take. Ketelboeter also
declined more aggressive recommended remedies like
injections or surgery.
  In September 2003, Ketelboeter applied for Disability
Insurance Benefits, claiming that he had been disabled
since July 25, 2003. A non-treating state-agency physician
reviewed Ketelboeter’s application and medical record
and concluded that Ketelboeter could lift up to ten
pounds frequently and twenty pounds on occasion, and
could sit or stand up to six hours a day. Two months
later Ketelboeter’s treating physician, Dr. Dickson, deter-
mined that Ketelboeter could only perform work that
allowed him to sit or stand at will and to take 3 to 4 short
breaks during the work day. Dr. Dickson concluded that
Ketelboeter could only occasionally lift 10 pounds and
rarely or never lift more, and could rarely twist, bend,
crouch, or climb. Even with those restrictions, Dr. Dickson
continued, Ketelboeter would have to miss work about
three days per month. Finally, the doctor noted that
emotional distress did not augment Ketelboeter’s
physical limitations.
No. 07-3272                                               5

   In April 2005, an ALJ held an administrative hearing
dealing with the plaintiff-appellant’s claim during
which Ketelboeter and a medical expert also testified.
Ketelboeter testified that he walked half a mile to a mile
four times a week, but that it was hard for him to bend
down, sit for long periods of time, drive, or do house-
work. The medical expert observed that the only objective
evidence of Ketelboeter’s injury was localized tender-
ness, and stated that he could do light work, including
lifting 20 pounds occasionally and 10 pounds frequently,
so long as he had the option to sit or stand. The vocational
expert assumed that Ketelboeter could lift 20 pounds
occasionally, 10 pounds frequently, could stand or walk
or sit for six hours a day but could sit or stand as
needed during the course of his work day, and was
restricted in the kinds of work he could do involving
overhead reaching. Based on these assumptions, the
expert opined that Ketelboeter could not perform his past-
relevant work, but could perform other jobs, such as
bench hand, assembler, or office helper, as those jobs are
described in the Dictionary of Occupational Titles (DOT).
Finally, the vocational expert testified that if he were
to assume that Ketelboeter had the limitations that
Dr. Dickson identified, no jobs would be available to him.
   The ALJ denied Ketelboeter’s claim for disability bene-
fits, and the Appeals Council upheld the ALJ’s decision.
Ketelboeter attempted to respond with additional sub-
missions of medical evidence, including Dr. Dickson’s
additional statement recommending that Ketelboeter
would have to take five to six unscheduled breaks during
the work day rather than three to four and he would
6                                               No. 07-3272

probably miss more than four days of work per month.
After reviewing the new evidence, the ALJ granted
Ketelboeter another hearing.
  At the second hearing, Ketelboeter testified that his
pain had increased since the first hearing and he could
now only walk around the yard. Ketelboeter stated that
he had to change positions frequently and spent most of
his time sleeping, though he sometimes observed and
advised his family when they did chores on their farm,
including milking cows and maintaining the tractor. He
also testified that Dr. Dickson had prescribed him an anti-
depressant, but did not refer him to a mental-health
professional. A state-agency medical expert, Dr. Andrew
Steiner, testified that he observed little objective
evidence of Ketelboeter’s pain, and, relying on that objec-
tive evidence and discounting Ketelboeter’s inconsistent
self-reports of pain and discomfort, concluded that
Ketelboeter could do light lifting and occasional over-
head work. Moreover, continued the doctor, no medical
evidence suggested that Ketelboeter had to change posi-
tions frequently. Despite the new evidence, the ALJ
asked the vocational expert to assume that Ketelboeter
had the same limitations that he asked the vocational
expert to assume in the first hearing. The vocational expert
this time identified several other new jobs he thought
Ketelboeter could perform, including locker room atten-
dant, someone who marks prices to merchandise, and
parking lot attendant. The ALJ did not ask the vocational
expert if his view of those jobs differed from the descrip-
tions of the jobs in the DOT.
No. 07-3272                                                7

  The ALJ denied Ketelboeter’s claim, finding that he
could work in a significant number of jobs in the national
economy. The ALJ found that Ketelboeter’s characteriza-
tion of the “intensity, persistence, and limiting effects” of
his symptoms was not entirely credible and furthermore
lacked support with objective evidence in the record.
Moreover, the ALJ reasoned that Ketelboeter’s decisions
to abandon physical therapy and to “routinely reject
more aggressive care” were inconsistent with his claims
of severe pain. And, the ALJ continued, Ketelboeter
continued to perform basic life activities and succeeded
in working for eight years after his initial injury without
any objective evidence that his physical condition had
worsened. In so ruling, the ALJ placed more weight on the
testimony of non-examining reviewing medical experts
who had reviewed his medical records, x-rays, and scans,
than that of Ketelboeter’s treating physicians, finding that
Dr. Dickson’s conclusions were inconsistent with both
objective medical records and Dickson’s own observa-
tion that Ketelboeter’s reported pain exceeded the
physical evidence. Ketelboeter sought further review, but
the Appeals Council denied that request and the
district court affirmed the ALJ’s decision. Ketelboeter
appeals.


                         Analysis
  Because the Appeals Council declined to review the
ALJ’s decision, we treat the ALJ’s ruling as final. See
Schmidt v. Astrue, 496 F.3d 833, 841 (7th Cir. 2007). We
will affirm the ALJ’s decision if it is supported with
8                                               No. 07-3272

substantial evidence. Skinner v. Astrue, 478 F.3d 836, 841
(7th Cir. 2007). Evidence counts as “substantial” so long
as it is “sufficient for a reasonable person to accept as
adequate to support the decision.” Jens v. Barnhart, 347
F.3d 209, 212 (7th Cir. 2003) (internal quotation marks
omitted). We cannot substitute our judgment for that of
the ALJ when assessing the weight of the evidence. See
id.; Schmidt v. Apfel, 201 F.3d 970, 972 (7th Cir. 2000).
  On appeal Ketelboeter argues that the ALJ’s decision is
unsupported by substantial evidence. Specifically, he
claims that the ALJ improperly placed more weight on
the opinions of the state-agency doctors than those of
his treating physician and thus erroneously found that
his symptoms were not credible. Ketelboeter also con-
tends that the ALJ should have asked the vocational expert
if his testimony conflicted with the DOT and that the
ALJ neglected to probe adequately the vocational
expert’s opinion. Finally, Ketelboeter maintains that the
ALJ failed to consider his mental impairments together
with his physical ailments.
  A treating physician’s opinion concerning the nature
and severity of a claimant’s injuries receives controlling
weight only when it is “well-supported by medically
acceptable clinical and laboratory diagnostic techniques”
and is “consistent with substantial evidence in the record.”
20 C.F.R. § 404.1527(d)(2); see also Schmidt, 496 F.3d at
842; Skarbek v. Barnhart, 390 F.3d 500, 503 (7th Cir. 2004).
The treating physician’s opinion is important because
that doctor has been able to observe the claimant over
an extended period of time, but it may also be unreliable
No. 07-3272                                               9

if the doctor is sympathetic with the patient and thus
“too quickly find[s] disability.” Stephens v. Heckler, 766
F.2d 284, 289 (7th Cir. 1985); see also Schmidt, 496 F.3d at
842. Accordingly, if the treating physician’s opinion is
inconsistent with the consulting physician’s opinion,
internally inconsistent, or based solely on the patient’s
subjective complaints, the ALJ may discount it. See White
v. Barnhart, 415 F.3d 654, 659 (7th Cir. 2005); Skarbek,
390 F.3d at 503.
  Substantial evidence supports the ALJ’s decision to give
greater weight to the state-agency doctors’ opinions than
to that of Ketelboeter’s treating physician, Dr. Dickson.
As the ALJ observed, the record contains scant objective
evidence in support of the alleged severity of
Ketelboeter’s self-reported symptoms and accompanying
pain and discomfort. For example, repeated x-rays
showed no physical changes that might have cor-
roborated the claimed increase in pain that Ketelboeter
reported over time. See Skarbek, 390 F.3d at 504 (upholding
ALJ’s decision to discount treating physician’s finding
that claimant had limited range of motion because it was
not supported by x-rays or other medical evidence).
Dr. Dickson’s conclusions about Ketelboeter’s limitations
were based almost entirely on Ketelboeter’s subjective
complaints rather than objective evidence. His conclu-
sion was also internally inconsistent: he believed
Ketelboeter’s reported pain was out of proportion with
the physical evidence and objective evidence in the
record, but nonetheless concluded that he was disabled.
  Ketelboeter next argues that the ALJ erred by failing
to ask the vocational expert if his testimony conflicted
10                                             No. 07-3272

with the DOT. An ALJ has an affirmative duty to ask a
vocational expert if the evidence that the expert has
provided about job limitations conflicts with the job
requirements listed in the DOT, and if the evidence
appears to conflict, the ALJ must ask the vocational
expert to explain the conflict. Prochaska v. Barnhardt,
454 F.3d 731, 735 (7th Cir. 2006). Here, as the Com-
missioner concedes, the ALJ did not fulfill that duty at
the second hearing, but his error is harmless. See Keys v.
Barnhart, 347 F.3d 900, 994-95 (7th Cir. 2003) (applying
harmless error analysis to claim for disability benefits).
  The DOT’s descriptions of the jobs that the vocational
expert discussed do not conflict with the hypothetical
limitations given by the ALJ. Ketelboeter insists that the
“price marker” job requires “frequent overhead reaching,”
which he is unable to perform, but the DOT description
does not support that assertion. Ketelboeter also
contends that he cannot perform the requirements of a
parking-lot attendant’s job because it requires the ability
to drive a car, but in fact the DOT description states that
the attendant “records time and drives automobile to
parking space, or points out parking space for customer’s
use.” (emphasis added). The non-driving alternative
separated by a disjunctive eliminates the need for a
vocational expert to explain any discrepancy, and in
any event, the vocational expert did make clear that the
jobs he identified would not require driving.
  Ketelboeter is on stronger ground when he suggests
that the DOT for the locker-room attendant job, which
requires “plac[ing] container on storage shelf or rack”
No. 07-3272                                               11

might conflict with the ALJ’s hypothetical limitation
against overhead work. But even so, nothing in the
record negates the evidence from the first hearing that,
based on the limitations assessed by the ALJ, Ketelboeter
could find a job as a bench hand, assembler, or office
helper. The ALJ’s failure at the second hearing to ask
the vocational expert if his testimony conflicted with
the DOT was therefore harmless.
  Ketelboeter also claims that the ALJ erred by failing
to include the hypothetical question of what was the
frequency with which Ketelboeter would have to sit
and stand. The ALJ told the vocational expert to assume
that Ketelboeter would “have to have a sit, stand option
where he could sit or stand as needed during the
day.” According to Ketelboeter, the ALJ was required to
describe how often he would need to change position.
But a job in which Ketelboeter could sit or stand “as
needed” would necessarily encompass frequent sitting
and standing. Changing positions “as needed” allows
an employee broad flexibility and thus has a more re-
strictive effect on the jobs available to him than the lim-
itation Ketelboeter thinks the ALJ should have described.
  Finally, Ketelboeter argues that the ALJ erred by
failing to consider the limited amount of evidence of his
mental impairments. That evidence, however, is exceed-
ingly sparse. The only record evidence of impaired
mental health that Ketelboeter points to is (1) Dr. Dickson’s
notes that Ketelboeter’s physical pain caused him
anxiety and adjustment problems and (2) his prescription
for anti-depressants. We agree with the ALJ that no
12                                          No. 07-3272

physician asserted that any anxiety or depression
impaired Ketelboeter’s ability to work. After reviewing
the record, we are convinced that there is substantial
evidence supporting the ALJ’s finding that Ketelboeter’s
purported mental impairments did not impair his
physical condition to the point of disability.


                    CONCLUSION
  The ALJ’s decision holding that Ketelboeter is not
disabled is supported by substantial evidence.
                                             A FFIRMED.




                        12-15-08
