Kindhart v. Astrue
Filing
15
OPINION (See Written Opinion): The Defendant's Motion for Summary Affirmance (d/e 12 ) is ALLOWED, and Plaintiff's Brief in Support of Motion for Summary Judgment (d/e 10 ) is DENIED. Summary judgment is entered in favor of Defendant Commissioner and against the Plaintiff. The decision of the Commissioner is AFFIRMED. THIS CASE IS CLOSED. Entered by Magistrate Judge Byron G. Cudmore on 03/04/2013. (VM, ilcd)
E-FILED
Monday, 04 March, 2013 02:54:23 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS, SPRINGFIELD DIVISION
JULIE A. KINDHART,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
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No. 11-cv-3440
OPINION
BYRON G. CUDMORE, U.S. MAGISTRATE JUDGE:
Plaintiff Julie A. Kindhart appeals from the denial of her application for
Social Security Disability Insurance Benefits (“Disability Benefits”) under
Title II of the Social Security Act. 42 U.S.C. §§ 416(i), 423. This appeal is
brought pursuant to 42 U.S.C. §§ 405(g) . Kindhart has filed her Brief in
Support of Motion for Summary Judgment (d/e 10), and Defendant
Commissioner of Social Security has filed a Motion for Summary
Affirmance (d/e12). The parties consented, pursuant to 28 U.S.C. § 636(c),
to proceed before this Court. Consent to Proceed Before a United States
Magistrate and Order of Reference, entered November 02, 2012 (d/e 14).
For the reasons set forth below, the Decision of the Commissioner is
affirmed.
Page 1 of 27
STATEMENT OF FACTS
Kindhart was born on December 10, 1955. She completed the
eleventh grade and secured a GED. She also completed two years of
college course work, but did not receive a degree. In addition, she had
training as a secretary and certified nursing assistant (CNA). R. 45-46.
She last worked in August 2009 as a CNA at the Quincy, Illinois, Veterans’
Home (VA Home). Kindhart suffers from bipolar disorder; borderline
personality disorder; polysubstance abuse; and postoperative effects of
rotator cuff surgery, ankle surgery, and carpel tunnel release surgery. She
also complains of pain in her hips, knees, and back.
On July 26, 2005, a psychiatrist, Dr. Terry M. Killian, M.D., performed
an independent medical examination of Kindhart for fitness for duty for
Kindhart’s employer, the VA Home. Dr. Killian found her unfit for duty
because of her depressive episodes. He diagnosed her with bipolar mood
disorder, type II, with the current episode depressed with agitation. R. 293.
Dr. Killian’s recommendations included treatment by a psychiatrist,
modification of her medication, and a substance abuse evaluation. He also
recommended another fitness examination before she returned to work.
R. 293.
Page 2 of 27
On February 2, 2007, Dr. Killian performed another fitness
examination. Kindhart was under the care of a psychiatrist, Dr. Salvador
Sanchez, M.D., and taking several medications for her mental condition.
Dr. Killian noted that Kindhart’s mood was much improved. Her speech
was at a normal rate, her thought processes were coherent and goal
directed, her intellectual functioning appeared to be normal, and her
judgment appeared to be good. R. 293. Dr. Killian opined that Kindhart
was receiving a good quality of psychiatric care and was much improved.
He opined that she could return to work immediately without any
restrictions, except, possibly random drug testing for substance abuse.
R. 293-94.
Kindhart returned to work at the VA Home. In September 2007,
Kindhart injured her shoulder when a patient grabbed and twisted her arm.
R. 326. Kindhart went to see Dr. Steven Morton, O.D., for her shoulder
pain. Dr. Morton treated her shoulder with injections and physical therapy.
R. 309, 311, 317. Her pain, however, persisted.
On January 9, 2008, Kindhart went to the Blessing Hospital Blessing
Behavioral Center.1 Kindhart reported being sad, depressed, tearful, and
1
The doctor’s signature on the record is not legible, but appears to be that of her psychiatrist,
Dr. Salvador Sanchez, M.D. See R. 411. Dr. Sanchez’s signature appears on the records from both the
Blessing Behavioral Center and Transitions of Western Illinois, discussed below. Counselors also signed
some records at Transitions of Western Illinois.
Page 3 of 27
unstable, which was affecting her work performance. She reported that
she may lose her job. R. 287.
On January 18, 2008, Kindhart went to see Dr. Morton. Kindhart was
complaining of shoulder pain. Dr. Morton noted that Kindhart was “a little
bit argumentative” during the examination. R. 317. Dr. Morton noted
inconsistencies in Kindhart’s statements about the efficacy of the injections.
Kindhart first said that the injections provided no relief. Kindhart then said
that the first injection provided 100 percent pain relief, the second injection
provided less relief, and the third injection provided no relief. Dr. Morton
recommended studies of Kindhart’s cervical spine to see if the pain was
coming from her neck, but Kindhart “would not let me get any further
evaluation of her cervical spine.” R. 317. Dr. Morton stated that surgery
would not provide the relief she wanted. R. 317.
Dr. Morton filled out a return to work slip authorizing Kindhart to
return to work on January 28, 2008. Dr. Morton opined that Kindhart could
return to work, but was limited to lifting, pushing or pulling no more than 20
pounds, and also no stretching of the left arm. R. 314.
On February 4, 2008, Kindhart went to seek Dr. Morton for her
shoulder. Dr. Morton noted that he did not think surgery would relieve
Kindhart’s pain. He recommended an MRI of the cervical spine. R. 311.
Page 4 of 27
Dr. Morton filled out a return to work slip, authorizing Kindhart to return to
work on February 6, 2008. Dr. Morton again opined that Kindhart could
return to work, but was limited to lifting, pushing or pulling no more than 20
pounds, and also no stretching of the left arm. R. 310.
On April 5, 2008, the VA Home placed Kindhart on administrative
leave because she reported that she dreamed she shot three of her
supervisors. R. 291.
On April 9, 2008, Kindhart went to the Blessing Behavioral Center.
She reported that she had a distressing dream that she shot people at
work. She reported that the dream was under investigation and she was
on administrative leave. She reported that she was told she was a threat.
Kindhart reported that she had 1½ years before she could retire. R. 284.
On April 16, 2008, Kindhart saw Dr. William Holt, M.D., for a second
opinion on her shoulder. R. 309. Dr. Holt also recommended an MRI of
the cervical spine. He also stated, “I would share [Dr. Morton’s] concern
that there may only be a limited amount that can be done to help this
patient.” R. 309.
On April 17, 2008, Dr. Killian performed a third independent medical
examination of Kindhart for fitness for duty. The VA Home sent her for the
examination because of Kindhart’s dream about shooting her supervisors.
Page 5 of 27
Dr. Killian opined that Kindhart’s bipolar disorder was in remission and she
was fit for duty. He again opined that Kindhart had a problem with
substance abuse, primarily alcohol. Kindhart reported drinking a six-pack
of beer every other night. R. 298. Dr. Killian concluded, “I find Ms.
Kindhart is currently in remission from her bipolar mood disorder, and that
she does not have any significant psychiatric symptoms which would
prevent her from performing the duties of her position or prevent her from
working in a safe fashion.” R. 300. He further opined that any problems
with her behavior on the job, “appears to be the result of resentment that
she carries regarding her job, and not due to her psychiatric condition.”
R. 300 (emphasis in the original). Dr. Killian, however, would not predict
whether Kindhart would harm anyone, “I cannot state with any degree of
psychiatric certainty whether Ms. Kindhart presents a real risk of violence
toward coworkers or supervisors, but I believe that it is unlikely but not out
of the question.” R. 300.
On July 21, 2008, Kindhart saw Dr. Darr Leutz, M.D., for her shoulder
pain. R. 326-28. Dr. Leutz found tenderness on palpitation and some
reduced strength. Dr. Leutz diagnosed rotator cuff tendonitis, adhesive
capsulitis of the shoulder, bicipital tendonitis, and subacromial bursitis.
Dr. Leutz recommended surgery. R. 328.
Page 6 of 27
On July 30, 2008, a state agency psychologist, Dr. Joseph Mehr,
Ph.D., reviewed Kindhart’s medical records and completed a Psychiatric
Review Technique form and a Mental Residual Functional Capacity
Assessment. R. 330-47. Dr. Mehr identified Kindhart’s condition is bipolar
disorder in remission with medication, personality disorder, and alcohol
abuse. R. 333, 337, 338. Dr. Mehr opined that Kindhart’s mental
conditions resulted in moderate restrictions in activities of daily living;
moderate difficulties in maintaining social functioning; and moderate
difficulties in maintaining concentration, persistence or pace; and no
episodes of decompensation of extended duration. R. 340. Dr. Mehr
opined that Kindhart could remember locations and work-related
procedures; understand and remember instructions for simple actions of
routine and repetitive type; carry out very short and simple instructions;
maintain attention and concentration for extended periods; perform at a
regular, acceptable pace requiring only common numbers and lengths of
rest breaks; get along well with coworkers or peers without expressing
inappropriate behavior; and engage in generally socially appropriate
behavior in setting with reduced interpersonal contact. R. 344-46.
On August 8, 2008, a state agency physician, Dr. Sandra Bilinsky,
M.D., reviewed Kindhart’s medical records and prepared a residual
Page 7 of 27
functional capacity assessment. R. 348-55. Dr. Bilinsky opined that
Kindhart could lift 20 pounds occasionally and 10 pounds frequently;
sit/stand or walk for two hours in an eight-hour workday; sit for six hours in
an eight-hour workday; never could climb ladders, ropes, or scaffolds; had
limited ability to push and pull with her upper extremities; and had limited
ability to reach with her left arm due to her shoulder injury. R. 350-51.
On August 22, 2008, Dr. Leutz performed surgery on Kindhart’s
shoulder. R. 386. After the surgery, Kindhart underwent physical therapy.
R. 381. On September 24, 2008, Dr. Leutz stated in a return to work note
that Kindhart could return to work at full duty on October 20, 2008. R. 385.
On September 11, 2008, Kindhart went to Transitions of Western
Illinois for counseling. She reported that she had been out of her
medications for two weeks. She was anxious. She reported that she
would find out if she had her job back at the end of October. Kindhart was
irritable, lacked a strong support system, ate one meal a day, had poor and
fragmented sleep, and had fleeting suicidal ideas. R. 409-10. Dr. Sanchez
prescribed medication and scheduled her to return in six weeks. R. 411.
The records were signed by Dr. Sanchez and Kindhart’s case manager and
counselor, Tim Baker.
Page 8 of 27
On September 15, 2008, Kindhart saw Baker at Transitions of
Western Illinois. Baker gave Kindhart a Global Assessment of Functioning
Scale (GAF) score of 50. R. 402. He formulated an individualized service
plan for Kindhart for the next six months. R. 402-04.
On September 29, 2008, Kindhart went to Transitions of Western
Illinois. She reported being anxious and having panic attacks with
agoraphobia. She reported that she was unable to function and unable to
leave the house. Dr. Sanchez adjusted her medication. R. 418, 420.
On November 7, 2008, a state agency psychologist, Dr. Phyllis
Brister, Ph.D., reviewed and affirmed Dr. Mehr’s opinions. R. 387-89.
On November 12, 2008, a state agency physician, Dr. David Mack,
M.D., reviewed Kindhart’s medical records and prepared a residual
functional capacity assessment. R. 390-97. Dr. Mack opined that Kindhart
could lift 20 pounds occasionally and 10 pounds frequently; could sit/stand
or walk for six hours in an eight-hour workday; sit for six hours in an eighthour workday; never could climb ladders, ropers, or scaffolds; should avoid
repetitive pushing and pulling with her left upper extremity; and had limited
ability to reach with her left extremity. Dr. Mack noted limited range of
motion in the left shoulder. R. 391.
Page 9 of 27
On December 1, 2008, Kindhart went to Transitions of Western
Illinois for counseling. She was upset and reported that her past employer
was not going to let her come back. She reported low energy and poor
sleep and appetite. R. 450-51.
On January 19, 2009, Kindhart was informed that she could no longer
get her medications through a grant program that had been supplying
them. R. 459. The notes from her February 9, 2009, sessions at
Transitions of Illinois indicate that she was receiving her medications at that
time. The notes state that one medication, Abilify, was being discontinued.
R. 463.
On March 11, 2009, Kindhart went to Blessing Behavioral Center.
She reported one panic attack a week. She reported feelings of
hopelessness and some fleeting thoughts of death. She reported improved
energy and anxiety. R. 433.
On May 6, 2009, Kindhart went to see Blessing Behavioral Center.
Kindhart reported that she had occupational stressors and that she became
easily overwhelmed. The handwritten notes state, “(Is pt. able to work?)”.
R. 430. Kindhart reported that she was not depressed. R. 430.
On July 7, 2009, Kindhart was discharged from counseling at
Transitions of Western Illinois due to lack of participation. R. 442.
Page 10 of 27
On September 1, 2009, Kindhart went to Blessing Behavioral Center.
Kindhart reported that she had been suspended at work because she was
accused of making threats. Kindhart stated that she had not made any
threats. R. 429. On examination, Kindhart’s memory and concentration
were good, her appetite was good, she was sleeping well, and she had fair
energy and motivational level. R. 429. Her anxiety, agitation and irritability
were deemed situational. R. 429.
On or about December 22, 2009, Kindhart fell and broke her right
ankle while walking her dogs. R. 508. On December 23, 2009, Dr. Ronald
Wheeler, M.D., performed ankle surgery on Kindhart to fix the fracture.
R. 504-06. On January 12, 2010, Kindhart saw Dr. Wheeler for a follow up
after the surgery. Dr. Wheeler noted that her wounds were healing well.
Dr. Wheeler replaced the cast with a short leg cast and stated that he
would recheck in four to six weeks with X-rays out of the plaster cast.
R. 507.
On March 10, 2010, Kindhart went to see Blessing Behavioral Center.
Kindhart reported that she was arrested for using too much cold medication
and would be on probation for two years. Kindhart said she was “always
suicidal.” R. 510. She declined hospitalization. R. 510.
Page 11 of 27
On March 17, 2010, the Administrative Law Judge (ALJ) conducted
an evidentiary hearing in Hannibal, Missouri. Kindhart appeared in person
and with her attorney. A vocational expert Susan Entenberg also appeared
by telephone. R. 42-43.
Kindhart testified first. She testified that she was 54 years old at the
time of the hearing. She was divorced and lived alone in a two-story
house. She testified that she was 5 feet 7 inches tall and weighed 160
pounds. R. 45. She testified that she last worked in August 2009, as a
CNA at the VA Home. She testified, “I was set up. They did not want me .
. . .” R. 47.
The ALJ asked Kindhart to describe her physical conditions that did
not allow her to work. Kindhart testified that she broke her ankle. She also
testified that her ankles, knees, hips, and back all hurt. She testified that
her ankles and knees “grind and they crack.” R. 48. She also testified that
she had carpal tunnel in both wrists. R. 48. She testified that she had the
wrong surgery performed in her shoulders and “I have to live with it.” R. 48.
She also testified that her neck hurt. R. 49.
Kindhart testified that the pain in her back was “a very dull pain, a
heavy pain.” R. 57. The pain in her wrists was “a sharp electrical pain.”
Page 12 of 27
R. 57. Her knees “grind and they crack and they feel like severe Charlie
horses.” R. 58. Kindhart testified that her shoulders swell “if I overdo.”
R. 58. She testified that the pain in her ankles, knees, and wrists was
constant. Her back hurt when she stood too much or sat in a chair too
long. She testified that bending over hurt, too. R. 58. Physical activity
made the pain worse. R. 58. She testified that she relieved the pain in her
legs by elevating them and icing them until the swelling subsided. She
testified though, “But as soon as I get on them, they just start swelling up
on me again.” R. 58.
Kindhart testified that she had trouble walking and standing. She
testified that she had trouble sitting because her ankles swell. She also
stated that she had difficulty lifting and carrying things. R. 49. Kindhart
testified that her primary care physician restricted her from lifting more than
20 pounds, but her orthopedist restricted her from lifting more than 10
pounds. R. 50-51. She testified that her only current medication was Paxil
for her bipolar disorder. R. 51.
Kindhart testified that in a typical day, she woke up between 12:00
p.m. and 3:00 p.m. Once she was awake, she usually would lie in bed and
watch television. R. 52. She testified that she ate when she was hungry,
usually around 8:00 p.m. or 9:00 p.m. She testified, “I sleep about 20 hours
Page 13 of 27
a day.” R. 52. She testified that she lived in a bedroom on the ground floor
of her house next to a bathroom. R. 52.
Kindhart testified that she could groom and bathe herself. She did
her own grocery shopping, “when my animals need the food.” R. 53. She
testified that she had four dogs and three cats. R. 53. She testified that
she took two weeks to do her laundry. She washed dishes and swept the
floors when she had to. R. 53. She did not have hobbies and did not
exercise. R. 53-54. She testified that she did not see friends or family and
did not belong to any churches, clubs, or other organizations. R. 56.
Kindhart testified that she could lift a gallon of milk with her left hand.
She testified that her right wrist was worse. She testified that she could
carry one or two sacks of groceries and a gallon of milk from her car to her
house. She testified that she had to put one down to open the door. R. 59.
Kindhart could not estimate how long she could stand or sit at one time, or
how far she could walk. R. 60-61.
Kindhart testified that she had bipolar disorder and multiple
personality disorder. She said that, as a result, she hated authority figures
and liked to work by herself. R. 54. She testified that she has been seeing
Dr. Sanchez for the last nine or ten years for her mental condition. R. 54-
Page 14 of 27
55. She also testified that she saw a therapist at Transitions of Western
Illinois for two or three months. R. 55.
Kindhart testified that when she went out, she had problems with
people “when they act stupid.” R. 57. She testified that she became
agitated. R. 57. She testified that she had difficulty concentrating and
could not focus on one thing. R. 57.
Kindhart testified that she stopped drinking three years before the
hearing. She testified that before that, “I would drink occasionally.” R. 61.
She testified she would drink on “Weekends, when I didn’t have to work the
next day.” R. 61. She testified that she would drink a 12-pack of beer at
one time. R. 61. She testified that she last used illegal drugs ten years
before the hearing. R. 62. She testified that she had been charged with
buying too much ephedrine in a month. The Court takes judicial notice that
ephedrine is a precursor ingredient used to manufacture
methamphetamine, and possession of ephedrine with intent to manufacture
methamphetamine is a crime in Illinois. See 720 ILCS 646/10 and 646/20.2
Kindhart testified that she bought extra because her cat chewed up her
pills. R. 62. She testified that the criminal matter was still pending. R. 62.
2
The record does not indicate the specific charges brought against Kindhart.
Page 15 of 27
On examination by her attorney, Kindhart testified that before she
broke her ankle, she would stand for about seven minutes at one time
when she washed dishes. She testified that before she broke her ankle,
she could not stand in one place because her ankles would swell. She
testified that she did not walk her dogs before she broke her ankle.
R. 64. She testified that she took two weeks to do her laundry, “Because I
didn’t want to do it.” R. 65. She testified she had four loads of laundry to
wash. R. 65.
Kindhart testified that her supervisors harassed her. She testified
that she hated working with someone else. She liked working alone.
R. 66. She testified that the dietary department at the VA Home set her up
to have her fired. R. 66-67.
The vocational expert Entenberg then testified. ALJ asked Entenberg
the following hypothetical question,
Assume a hypothetical individual in the age range of 52 to 54,
education at GED level, certified as a CNA, [INAUDIBLE]
limited to light work, never climb ladders, ropes or scaffolds, no
overhead reaching with the left upper extremities, and further
limited to simple, repetitive tasks. How would these restrictions
– well there would be no past work, is that right?
R. 69. Entenberg responded, “Correct.” R. 69. The ALJ then asked
Entenberg for entry level jobs that such a person could perform. Entenberg
responded, “Jobs such as light housekeeping, in the area approximately
Page 16 of 27
9,000 . . . . Food preparation workers, about 5,000 . . . . Packer about
5,000 . . . .” R. 70.
The ALJ then asked Entenberg for the number jobs that fit the
restrictions given at the light and sedentary level. Entenberg opined that
50,000 jobs existed at the light level and 10,000 at the sedentary level.
R. 70.
The ALJ then asked Entenberg to assume the additional restriction
that the person needed to have only occasional contact with coworkers and
supervisors and no contact with the public. Entenberg opined that those
restrictions would not change the person’s ability to perform the specific
jobs that she previously listed. R. 70. She testified that the restriction
would reduce the gross number of jobs that the person could perform by
about 20 percent, to 40,000 jobs at the light level and 8,000 jobs at the
sedentary level. R. 70.
Entenberg opined that if Kindhart was totally credible, then Kindhart
could not work because Kindhart testified that she slept 20 hours a day and
could not be around people. R. 70. The hearing was then concluded.
DECISION OF THE ALJ
The ALJ issued his decision on May 21, 2010. R. 23-34. The ALJ
followed the five-step analysis set forth in Social Security Administration
Page 17 of 27
Regulations (Analysis). 20 C.F.R. §§ 404.1520, 416.920. Step 1 requires
that the claimant not be currently engaged in substantial gainful activity.
20 C.F.R. §§ 404.1520(b), 416.920(b). If true, Step 2 requires the claimant
to have a severe impairment. 20 C.F.R. §§ 404.1520(c), 416.920(c).
If true, Step 3 requires a determination of whether the claimant is so
severely impaired that he is disabled regardless of the claimant's age,
education and work experience. 20 C.F.R. §§ 404.1520(d), 416.920(d). To
meet this requirement at Step 3, the claimant's condition must meet, or be
medically equivalent to, one of the impairments specified in 20 C.F.R. Part
404 Subpart P, Appendix 1 (Listing). 20 C.F.R. §§ 404.1520(d),
416.920(d). If the claimant’s impairments, combination of impairments, do
not meet or equal a Listing, then the ALJ proceeds to Step 4.
Step 4 requires the claimant not to be able to return to his prior work
considering his age, education, work experience, and Residual Functional
Capacity (RFC). 20 C.F.R. §§ 404.1520(e), 416.920(e). The ALJ must
determine the claimant’s RFC in order to perform this analysis. If the
claimant cannot return to his prior work, then Step 5 requires a
determination of whether the claimant is disabled considering his RFC,
age, education, and past work experience. 20 C.F.R. §§ 404.1520(f),
416.920(f).
Page 18 of 27
The claimant has the burden of presenting evidence and proving the
issues on the first four steps. The Commissioner has the burden on the
last step; the Commissioner must show that, considering the listed factors,
the claimant can perform some type of gainful employment that exists in
the national economy. Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345,
352 (7th Cir. 2005); Knight v. Chater, 55 F.3d 309, 313 (7th Cir. 1995).
The ALJ found that Kindhart met her burden at Steps 1 and 2. She
was not engaged in substantial gainful activity and she suffered from
severe impairments of status post left rotator cuff surgery, bipolar disorder,
personality disorder, and polysubstance abuse. R. 25-26. The ALJ did not
include the broken ankle as a severe impairment because the ankle was
healing, and so, the impairments from the break were temporary and not
expected to last more than twelve months. R. 26.
At Step 3, the ALJ found that Kindhart’s impairments or combination
of impairments did not meet or equal any Listing. The ALJ specifically
considered the Listing for affective disorders, Listing 12.04. The Listing is
divided into three paragraphs, A, B, and C. Kindhart met the requirements
of paragraph A because she has bipolar disorder. Listing 12.04.A.3. To
meet the Listing, however, the claimant’s impairments must also meet the
requirements of either paragraphs B or C, as follows:
Page 19 of 27
B. [The effects of the affective disorder must result] in at least
two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence,
or pace; or
4. Repeated episodes of decompensation, each of extended
duration;
OR
C. Medically documented history of a chronic affective disorder
of at least 2 years' duration that has caused more than a
minimal limitation of ability to do basic work activities, with
symptoms or signs currently attenuated by medication or
psychosocial support, and one of the following
1. Repeated episodes of decompensation, each of extended
duration; or
2. A residual disease process that has resulted in such
marginal adjustment that even a minimal increase in mental
demands or change in the environment would be predicted to
cause the individual to decompensate; or
3. Current history of 1 or more years' inability to function outside
a highly supportive living arrangement, with an indication of
continued need for such an arrangement.
Listing 12.04.B & 12.04.C. The ALJ found that Kindhart had only moderate
limitations in the categories set forth in subparagraphs B.1, B.2, and B.3,
and no episodes of decompensation. The ALJ relied on Kindhart’s daily
activities and the evidence in the medical record. R. 27. The ALJ further
found that Kindhart did not meet any of the three subparagraphs of
paragraph C. R. 28.
Page 20 of 27
At Step 4, the ALJ found that Kindhart had the RFC to perform light
work in which she could never climb ladders, ropes, or scaffolds, or reach
overhead with her left extremity; and, in addition, the job must be limited to
simple, repetitive tasks involving only occasional contact with coworkers
and supervisors and no contact with the general public. R. 28. In making
this finding, the Court relied on the 2008 examination by Dr. Killian;
Dr. Sanchez’s treatment notes; and the opinions of Drs. Bilinsky, Mack,
Mehr, and Brister. The Court noted that the RFC was “more generous” to
Kindhart than the agency doctors’ opinions would warrant. R. 32.
The ALJ found that Kindhart’s testimony about the severity of her
impairments was not credible. The ALJ cited Kindhart’s testimony that she
slept 20 hours a day as incredible. The ALJ also stated that her testimony
that she only drank occasionally on weekend nights when she did not work
the next day was not credible, and her testimony that she did not use illegal
drugs was not credible. The medical records did not support her claim
about sleeping 20 hours a day; Dr. Killian’s 2008 report stated that Kindhart
drank a six-pack of beer every other night; treatment notes “consistently
show polysubstance abuse;” and “she was recently arrested, according to
her testimony, for attempting to make methamphetamine.” R. 32. The ALJ
Page 21 of 27
also noted that Kindhart took care of seven pets by herself, and she
testified that she could carry two bags of groceries and a gallon of milk.
R. 32.
The ALJ found that Kindhart met her burden at Step 4 to show that
she could not perform her past relevant work as a CNA. The ALJ relied on
the RFC determination and the testimony of Entenberg. R. 33. At Step 5,
the ALJ found that Kindhart could perform a significant number of jobs in
the national economy. The ALJ relied on the RFC, the Medical-Vocational
Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2, and Entenberg’s
testimony that Kindhart could perform 40,000 light and 8,000 sedentary
jobs existing in the region. R. 34. The ALJ, thus, concluded that Kindhart
was not disabled.
Kindhart appealed the decision of the ALJ. On August 3, 2011, the
Appeals Council denied Kindhart’s request for review. R. 15. The ALJ’s
decision, thus, became the decision of the Commissioner. R. 15. On
November 1, 2011, the Appeals Council granted Kindhart an extension of
time to file an action for judicial review. R. 1. Kindhart then filed this action
for review of the decision of the Commissioner.
Page 22 of 27
ANALYSIS
This Court reviews the Decision of the Commissioner to determine
whether it is supported by substantial evidence. In making this review, the
Court considers the evidence that was before the ALJ. Wolfe v. Shalala,
997 F.2d 321, 322 n.3 (7th Cir. 1993). Substantial evidence is “such
relevant evidence as a reasonable mind might accept as adequate” to
support the decision. Richardson v. Perales, 402 U.S. 389, 401 (1971).
This Court must accept the findings if they are supported by substantial
evidence, and may not substitute its judgment. Delgado v. Bowen, 782
F.2d 79, 82 (7th Cir. 1986). This Court will not review the credibility
determinations of the ALJ unless the determinations lack any explanation
or support in the record. Elder v. Astrue, 529 F.3d 408, 413-14 (7th Cir.
2008). The ALJ must articulate at least minimally his analysis of all
relevant evidence. Herron v. Shalala, 19 F.3d 329, 333 (7th Cir. 1994).
The ALJ must “build an accurate and logical bridge from the evidence to his
conclusion.” Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000).
The ALJ’s decision is supported by substantial evidence. The ALJ’s
findings at Steps 1 and 2 are supported by Kindhart’s work record and
medical records. The medical records support the conclusion that Kindhart
did not suffer from other severe physical impairments. Kindhart cites no
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evidence in the medical records to support her claims of swelling ankles
and pain in her knees, hips, and back. The ALJ found that Kindhart’s ankle
would heal, and so, was not a severe impairment. The records from
Dr. Wheeler support this finding.
The decision at Step 3 that Kindhart did not meet Listing 12.04 is
supported by Dr. Killian’s 2008 examination in which he found her fit for
duty and by the opinions of Drs. Mehr and Brister.
The RFC determination at Step 4 is supported by the opinions of
Drs. Bilinsky and Mack; by Dr. Morton’s return to work slips that authorized
lifting 20 pounds; and by Dr. Leutz’s return to work slip that stated that
Kindhart could return to full duty after shoulder surgery. The RFC finding is
also supported by the 2008 examination of Dr. Killian in which he found that
she was fit for duty, and by the opinions of Drs. Mehr and Brister. Given
the RFC determination, the finding that she could not perform her past
work as a CNA is supported by substantial evidence. The ALJ’s finding at
Step 5 that Kindhart could perform a substantial number of jobs that exist in
the national economy is supported by Entenberg’s opinions. The ALJ’s
decision that Kindhart was not disabled, therefore, is supported by
substantial evidence.
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Kindhart argues that the ALJ erred in finding that Kindhart did not
meet Listing 12.04. The Court disagrees. Dr. Killian opined that she was fit
for duty; Dr. Mehr opined that she had only moderate limitations and
restrictions in the relevant areas of subparagraph B.1, B.2, and B.3 of
Listing 12.04; and Dr. Brister affirmed these opinions. These medical
opinions provide substantial evidence to support the finding that Kindhart’s
impairments did not meet paragraph B of Listing 12.04. Kindhart provided
no evidence that she met any of the subparagraphs of paragraph C. She
did not need a highly supportive living arrangement; she lived alone with no
help from anyone. She presented no evidence of any episodes of
decompensation, and she presented no evidence that she is so poorly
adjusted that she could not handle minimal changes in her life. For
example, she suffered a broken ankle and did not suffer an episode of
decompensation. Rather, she has managed to continue living by herself.
Kindhart argues that she meets Listing 12.04 because Baker, her
counselor, found that she had a GAF of 50. Baker is not a physician so his
opinion, although possibly relevant, is not evidence from an acceptable
medical source. See 20 C.F.R. § 404.1513(a). Furthermore, a GAF score
does not necessarily correspond to a person’s functional limitations. See
American Psychiatric Association, Diagnostic and Statistical Manual of
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Mental Disorders 9DSM-IV-TR), at 33-44 (4th ed. Text Revision 2000).
The ALJ, thus, did not err in relying on the opinions of Drs. Killian, Mehr,
and Brister rather than a counselor’s GAF score. Kindhart’s other
arguments regarding Listing 12.04 are similarly unpersuasive. The ALJ did
not err is finding that Kindhart did not meet Listing 12.04.
Kindhart also argues that the ALJ erred in making his RFC
determination. Her arguments are not persuasive. The opinions or
statements of Drs. Morton, Leutz, Bilinsky, Mack, Killian, Mehr, and Brister
all support the ALJ’s RFC finding. These opinions clearly constitute “such
relevant evidence as a reasonable mind might accept as adequate” to
support the decision. Richardson, 402 U.S. at 401. The other matters in
the record cited by Kindhart do not convince the Court otherwise. The ALJ
RFC determination is supported by substantial evidence.
Lastly, Kindhart argues that the ALJ erred in finding her testimony not
to be credible. This Court will not review the ALJ’s credibility
determinations unless the determinations lack any explanation or support in
the record. Elder, 529 F.3d at 413-14. The ALJ explained the basis for his
credibility finding, and the explanation has support in the record. The ALJ
noted the inconsistencies between her testimony and the medical records
about her use of alcohol and illegal drugs and her incredible testimony that
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she slept 20 hours a day. This evidence supports the finding that Kindhart
was not fully credible. The Court, therefore, will not disturb the ALJ’s
credibility finding.
WHEREFORE the Defendant’s Motion for Summary Affirmance
(d/e12) is ALLOWED, and Plaintiff’s Brief in Support of Motion for Summary
Judgment (d/e 10) is DENIED. Summary judgment is entered in favor of
Defendant Commissioner and against the Plaintiff. The decision of the
Commissioner is AFFIRMED. THIS CASE IS CLOSED.
ENTER:
March 4, 2013
s/ Byron G. Cudmore
UNITED STATES MAGISTRATE JUDGE
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