Kogstad v. Astrue

Filing 28

ENTER MEMORANDUM Opinion and Order Signed by the Honorable Matthew F. Kennelly on 5/17/2012: Mailed notice (jmp, )

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

ROY KOGSTAD,
Plaintiff,
vs.
MICHAEL J. ASTRUE, Commissioner of
Social Security
Defendant.

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Case No. 11 C 2367

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY , District Judge:
Roy Kogstad has sued Michael J. Astrue, Commissioner of Social Security,
seeking review of a decision denying Kogstad disability insurance benefits. Both parties
have moved for summary judgment. For the reasons stated below, the Court grants
Kogstad’s motion and denies the Commissioner’s.
Background
Kogstad suffers from diabetes and coronary artery disease and claims that these
conditions have prevented him from working since January 1, 2004. Specifically,
Kogstad states that he cannot work full-time as an accountant and tax preparer, his
profession since graduating from college, because the stress of the job exacerbates his
diabetes and coronary artery disease. Before 2004, he worked full-time as a selfemployed accountant for several years. In January 2004 and again in August 2004,
doctors performed cardiac catheterization on Kogstad and placed stents in his coronary
arteries to treat his coronary artery disease. During this time, Kogstad’s diabetes also

appeared to be poorly controlled. Dr. Lawrence Dumont, one of Kogstad’s physicians,
noted in May 2004 that his blood glucose levels could vary widely each day. R. at 315.
In 2004, as a consequence of Kogstad’s health problems and, he claims, on the
advice of his doctors, he reduced his work schedule. Kogstad continues to work as an
accountant but now works from home an average of two hours each day rather than full
time in an office. Even with this reduced schedule, Kogstad says, he needs to take
frequent breaks to check and manage his blood glucose levels and is often fatigued or
has to rest after working for only an hour or two.
When Dr. Dumont saw Kogstad again in October 2005, he noted that Kogstad’s
glucose levels still varied a lot within each day. Id. at 299. In November 2007 and
February 2008, however, Dr. Greg Kirschner, another of Kogstad’s doctors, wrote that
Kogstad’s diabetes was very well controlled. Id. at 295, 488. Kogstad did not have
significant problems with his coronary artery disease between 2004 and the time that he
filed a claim for disability benefits in October 2007. Kogstad underwent a twenty-fourhour electrocardiogram (EKG) in November 2006. Id. at 281. The results were normal.
In March 2008, Kogstad underwent a cardiac stress test, and the results were likewise
normal. Id. at 423.
Kogstad filed a claim for disability benefits on October 25, 2007. The Social
Security Administration denied his claim in March 2008 and denied his request for
reconsideration in August 2008. Kogstad sought a hearing before an administrative law
judge (ALJ).
The hearing occurred on June 4, 2009. Kogstad testified and described the
limitations his conditions placed on him. He stated that fatigue and the stress
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associated with the job made it impossible for him to work full-time as an accountant.
Id. at 29. Even working from home a couple of hours a day could tire him out if he had
to talk on the phone with the IRS or a client. Id. Many days, he took an hour-long nap
in the afternoon to control his stress. Id. at 31. Kogstad thought that he might be able
to do less stressful work, such as a clerk at a retail store, but noted that he would need
frequent breaks to check his glucose levels and to lie down and rest to control his
glucose levels. Id. at 30–31. Kogstad agreed that his diabetes had been well controlled
on average during the past several years but stated that during each day he still
experienced unhealthy highs and lows in his blood sugar. Id. at 31–32. He stated that
he had not been treated for cardiac problems since 2004 but that he did have
occasional chest pain associated with stress. Id. at 32.
Kogstad also testified about his other daily activities. He stated that he exercised
two or three times per week, usually for about twenty-five minutes. Id. at 33. The ALJ
noted that Kogstad’s doctors had told him to exercise five or six times per week.
Kogstad said that he did not exercise that much because he did not have enough time
and he “just got lazy.” Id. Kogstad testified that he lived with his parents and helped out
by occasionally driving his mother and brother to various locations. Id. at 28, 42–43.
He did his own laundry and sometimes cooked or washed the dishes. Id. at 39. He
served as a trustee of his village between 2005 and 2009, attending regular meetings.
Id. at 41. Kogstad stated, however, that during his service as a trustee he had to take a
nine month leave of absence because he could not handle the stress of the job. Id.
Susan Entenberg, an impartial vocational expert, also testified. In response to
questions by the ALJ, she stated that there were jobs that were either sedentary or
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required light exertion and did not involve high stress like Kogstad’s previous work as an
accountant. Id. at 46–47. These jobs included cashier, light housekeeping, food
preparation, assembler, information clerk, and inspector, all of which were available in
the Chicago metropolitan area in large numbers. Id. Entenberg also testified, however,
that workers in these sorts of jobs typically are not allowed to take unscheduled or
unpredictable breaks during the work shift but instead are required to remain at a work
station and generally cannot be absent more than one day per month even for medical
reasons. Id. at 47–48.
The ALJ issued her decision on June 24, 2009. She determined that Kogstad
could perform light work, with limited use of ladders, ropes, and scaffolds and no
concentrated exposure to pulmonary irritants. Id. at 16. She also determined that
Kogstad could not work in high stress jobs. Id. The ALJ did not find credible Kogstad’s
claims of severe impairment due to diabetes and coronary artery disease, because she
thought the impairment he described was inconsistent with his daily activities and his
ability to work at least a few hours a day in his high-stress accounting job. Id. at 16–17.
She also found it noteworthy that Kogstad had told Dr. Kirschner in May 2009 that he
was not feeling tired or fatigued, which she found cast doubt on Kogstad’s testimony at
the hearing that he was frequently tired and needed to rest every day. Id. at 599. The
ALJ also found that Kogstad’s diabetes and coronary artery disease were well
controlled and had not caused him major problems since 2004. Id. at 17–18. She
acknowledged that Dr. Kirschner reported that Kogstad required frequent unscheduled
breaks during the day and would have to be absent from work more than four days a
month for medical reasons. Id. at 18, 613, 615. The ALJ did not credit this report,
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however, because she believed it conflicted with Dr. Kirschner’s reports that Kogstad’s
diabetes was well controlled. Id. at 18.
The ALJ found that because he could do light work that involved only low or
moderate stress, Kogstad could perform “jobs that exist in significant numbers in the
national economy” even though he could not perform his past job as an accountant
because it involved high stress. Id. at 18–19. The ALJ based this determination upon
vocational expert Entenberg’s testimony. Because the ALJ found there were jobs that
Kogstad could perform, she ruled that he was not disabled between January 1, 2004
and the date of her decision.
Kogstad contends that after the ALJ found that he was not disabled, he
attempted to work more hours in his home accounting business. Kogstad contends that
this resulted in another hospitalization. In September 2009, an ambulance took
Kogstad to the hospital after he experienced abdominal pain. Pl. Ex. 1 at 9. The next
day, his pain was diagnosed as a urinary tract stone, which he had apparently passed.
Id. at 15. Kogstad’s EKG was also abnormal, however, which led to him receiving
another cardiac catheterization and eventually another stent placed in his coronary
arteries. Id. at 16, 19–23.
In December 2010, Kogstad sought review of the ALJ’s decision from the Social
Security Administration’s Appeals Council. In addition to arguing that the ALJ’s decision
was wrong, he also presented new evidence of his most recent hospitalization and
cardiac treatment. Kogstad argued that this most recent treatment was a result of
attempting to work more hours as an accountant and that it demonstrated the extent of
his disability. The Appeals Council denied Kogstad’s request for review on February 11,
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2011.
Discussion
“Because the Appeals Council declined review, the ALJ’s ruling is the final
decision of the Commissioner.” Jones v. Astrue, 623 F.3d 1155, 1160 (7th Cir. 2010).
Kogstad argues that the Court should overturn the ALJ’s decision because the evidence
does not support it and that the case should be remanded so that an ALJ can consider
his post-hearing evidence. See 42 U.S.C. § 405(g).
A.

Review of the ALJ’s decision
The Court “review[s] the ALJ’s factual determinations deferentially and affirm[s] if

substantial evidence supported the decision.” Jones, 623 F.3d at 1160; accord 42
U.S.C. § 405(g).
Substantial evidence is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion. The ALJ is not
required to address every piece of evidence or testimony presented, but
must provide a logical bridge between the evidence and the conclusions
so that we can assess the validity of the agency’s ultimate findings and
afford the claimant meaningful review.
Jones, 623 F.3d at 1160 (internal quotation marks and citations omitted). “The ALJ
must rest [her] denial of benefits on adequate evidence contained in the record and
must explain why contrary evidence does not persuade.” Berger v. Astrue, 516 F.3d
539, 544 (7th Cir. 2008). The Court must consider both the evidence that supports the
ALJ’s decision and the evidence that does not support it. Briscoe ex rel. Taylor v.
Barnhart, 425 F.3d 345, 351 (7th Cir. 2005).
To be found disabled, Kogstad “must prove [ ]he is unable to engage in any
substantial gainful activity by reason of a medically determinable physical or mental
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impairment which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than twelve months.” Rice v.
Barnhart, 384 F.3d 363, 365 (7th Cir. 2004). To assess whether a disability claimant is
disabled, “[t]he Commissioner of the Social Security Administration uses a five-step
sequential analysis.” Id.
Steps one and two are threshold determinations and assess first, whether
a claimant is not presently working, and second, whether the complainedof impairment(s) are of the required duration and significantly limited the
claimant’s ability to work. In step three, evidence demonstrating the
claimant’s impairments is compared to a list of impairments presumed
severe enough to preclude any gainful work. . . . If the claimant is not able
to qualify for benefits under step three, the analysis proceeds to steps four
and five. The fourth step requires an assessment of whether the
claimant’s residual functional capacity [RFC] will allow the claimant to
pursue her past work. Where the impairment precludes the performance
of past work, the claimant’s RFC, age, education, and work experience
are considered to determine if other work exists that would accommodate
the claimant.
Id. (citations and footnote omitted); see 20 C.F.R. § 404.1520(a)(4).
The ALJ found that Kogstad was not performing substantial gainful activity at the
time he applied for disability and that his medical conditions significantly limited his
ability to work. R. at 15. The ALJ then determined that Kogstad’s medical conditions
were not among those that lead to a presumption of disability, and Kogstad does not
challenge that decision. Id. at 15–16.
Instead, Kogstad argues that the ALJ erred in determining that he could perform
light work if it involved low or moderate stress, without making any accommodation for
his need for frequent unscheduled breaks and several medical absences per month.
The ALJ’s finding that Kogstad did not need to have frequent breaks or absences is
essential to her determination that Kogstad was not disabled, because the only
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evidence on available jobs provided by the vocational expert indicated that the type of
jobs for which Kogstad was otherwise qualified would not tolerate frequent unscheduled
breaks or more than one absence per month. Id. at 15–16.
Kogstad supported his contention that he would need frequent breaks and
absences with his own testimony and statements by Dr. Kirschner. First, Kogstad
testified that he fatigued easily, could perform only one discrete task per day, and often
had to take immediate action to resolve problems with his blood glucose levels. Id. at
29, 31–32, 35, 38–39. When the ALJ specifically asked Kogstad if he would be able to
test his glucose levels and respond to any problems during the standard two breaks and
a lunch that potential employers would provide him, Kogstad said that he did not think
such scheduled breaks would be sufficient. Id. at 30–31. He stated:
Depending on the situation, if I feel like I’m low or I’m starting to shake,
you know, then I would need to go and lay down and get some sugars. I
mean, that would take 15-ish minutes. And, and that’s unpredictable. You
know, I don’t know, kind of, when that’s going to happen. So I think, if I
went to an employer and tried to work for them, I couldn’t guarantee that
I’d be there those eight hours, with the lunch and with the two breaks that
they usually allow.
Id. Kogstad testified that he could not imagine any job that he could consistently work
at for eight hours a day, five days a week, without having more than one or two
absences per month. Id. at 44–45.
Second, Dr. Kirschner completed a questionnaire that supported Kogstad’s
description of his limitations. Dr. Kirschner wrote that Kogstad’s symptoms included
fatigue and hyperglycemic and hypoglycemic attacks. Id. at 611. Dr. Kirschner also
wrote that Kogstad had difficulties when job stress exacerbated his diabetes and
coronary artery disease. Id. at 612, 615. Dr. Kirschner concluded that Kogstad would
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need daily unscheduled breaks of about five minutes, would need to be able to shift at
will between standing, sitting, and walking, and would miss more than four days per
month due to “bad days.” Id. at 613, 615.
The ALJ found that Kogstad’s testimony was not credible, and she discounted
Dr. Kirschner’s report because of conflicting information. A “determination of credibility
must contain specific reasons for the credibility finding. The finding must be supported
by evidence and must be specific enough to enable the claimant and a reviewing body
to understand the reasoning.” Craft v. Astrue, 539 F.3d 668, 680 (7th Cir. 2008)
(citation omitted). The ALJ found that Kogstad’s reported daily activities were
inconsistent with his reported need to take frequent breaks and vigilantly monitor his
glucose levels. In particular, she stated that Kogstad was able to help his mother by
taking her to the doctor and managing her medications; drive his brother to and from
work; exercise a few times per week; manage his own finances; and engage in leisure
activities such as sending e-mails, attending church, watching television, and going to
baseball games. R. at 16–17.
“An ALJ can appropriately consider a claimant’s daily activities when assessing
his alleged symptoms. However, [the Seventh Circuit] ha[s] cautioned the Social
Security Administration against placing undue weight on a claimant’s household
activities in assessing the claimant’s ability to hold a job outside the home.” Craft, 539
F.3d at 680. Kogstad’s daily activities showed that he could get around and perform
mental and light physical tasks. These activities, however, did not require Kogstad to
work for anything approaching eight hours with no unscheduled breaks. Further, all of
these activities occurred intermittently, and none of them, except possibly driving his
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mother and brother, involved a set schedule.
The ALJ also noted that Kogstad worked a few hours from home as an
accountant. R. at 16. Kogstad testified, however, that he worked on average two hours
per day and did not work at all on some days. Id. at 28. He also stated that even if he
did something no more taxing than talking on the phone with the IRS for an hour, he
would be exhausted and unable to work for the rest of the day. Id. at 29. Additionally,
Kogstad’s few hours of work at home allowed him the flexibility to take unscheduled
breaks to check and manage his blood glucose levels, something that the jobs the
vocational expert discussed would not allow. By itself, the evidence of Kogstad’s daily
activities and part-time work at home does not amount to substantial evidence
supporting the ALJ’s decision to reject his testimony about his limitations and conclude
that he could work full-time without any unscheduled breaks or absences. Cf. Berger,
516 F.3d at 546 (claimant’s testimony that he was totally disabled and rendered
immobile by back pain was not credible when he worked part-time as a carpenter and
did light construction work recreationally).
The ALJ also discounted Dr. Kirschner’s report because she believed that other
evidence contained conflicting information. Specifically, Dr. Kirschner had stated in
various records that Kogstad’s diabetes was well controlled. R. at 295, 488. The ALJ
stated that the fact that Kogstad’s diabetes was well controlled conflicted with Dr.
Kirschner’s statement that Kogstad would be absent from work more than four days per
month. Id. at 18. The ALJ did not, however, explain how or why the two statements
conflicted. Nor did the ALJ explain why she effectively chose to disregard or discount
Dr. Kirschner’s concrete statement about absences and instead rely on his more
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nebulous statement that Kogstad’s diabetes was well controlled. Though the ALJ stated
that Dr. Kirschner’s statement about absences appeared to be tied to Kogstad’s
previous high-stress work as an accountant, there is nothing in Dr. Kirschner’s report to
support this. Id. The report separately addresses stress and absences, and it does not
suggest that absences are a concern only when stress is also a concern. Id. at 612,
615.
The only evidence in the record that appears to explain Dr. Kirschner’s statement
that Kogstad’s diabetes is well controlled tends to support the physician’s conclusion
that Kogstad would need frequent absences. Dr. Kirschner’s notes appear to indicate
that Kogstad was working hard to control his diabetes, making “detailed home records.”
Id. at 488. Kogstad himself testified that he had to take breaks and rest during the day
to control his blood glucose levels and that even though he was “diligent” his glucose
levels still could vary unpredictably throughout the day. Id. at 30–31. In 2004 and 2005,
Dr. Dumont also noted that Kogstad’s blood sugar varied widely throughout the day. Id.
at 299, 315. This all tends to support Dr. Kirschner’s conclusion that Kogstad often
would have bad days that might require being absent from work.
The ALJ also appears to have discounted Dr. Kirschner’s conclusion that
Kogstad would require unscheduled breaks every day. Indeed, the ALJ had to do so in
order to conclude that Kogstad could work the jobs discussed by the vocational expert
that would not tolerate unscheduled breaks. The ALJ’s written decision, however, does
not specifically disclose her reasoning for rejecting Dr. Kirschner’s conclusion. The ALJ
suggested that Dr. Kirschner’s report as a whole was unpersuasive because of the
contradiction between the statement that Kogstad’s diabetes was well controlled and
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the conclusion that he would require more than four absences a month. As discussed
above, however, those two statements were not contradictory.
The ALJ also gave “[t]he opinion of the non-examining state agency physician . .
. some weight” but did not provide a record citation to indicate exactly what opinion she
was considering. Id. at 18. There appear to be two state agency physicians’ reports in
the record. Id. at 476–83, 595–97. The first physician’s report stated that Kogstad’s
description of his symptoms was consistent with his medical conditions and with the
evidence as a whole. Id. at 481. The report also concludes, “info consistent and
credible,” with no further explanation. Id. at 483. The second physician’s report is a
review of the previous report and affirms it but also states, “Claimant is partially credible
with symptoms somewhat more severe than the objective findings.” Id. at 596–97.
Neither report discusses whether Kogstad would require unscheduled breaks or
frequent absences. Even giving some weight to these reports, there is nothing to
suggest that Kogstad did not need unscheduled breaks and absences as Dr. Kirschner
concluded. See Brown v. Barnhart, 298 F. Supp. 2d 773, 798–99 (E.D. Wis. 2004)
(reversing ALJ’s decision when it ignored limitations placed by doctors that included the
need for unscheduled rest breaks and more than four absences per month; ALJ cited
other medical reports as contrary, but those reports did not address these limitations).
In sum, the Court concludes that the ALJ’s decision to reject as incredible
Kogstad’s testimony that he required unscheduled breaks and frequent absences lacks
even “some support in the record.” Berger, 516 F.3d at 546. Furthermore, the ALJ
failed to “minimally articulate . . . her justification for rejecting” Dr. Kirschner’s report that
stated the same. Berger, 516 F.3d at 545. Consequently, the ALJ’s finding that
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Kogstad could perform available jobs and was not disabled is not supported by
substantial evidence, because the only jobs discussed by the vocational expert would
not tolerate unscheduled breaks or more than one absence per month. The Court
therefore reverses the ALJ’s decision.
The Court has the authority to grant disability benefits to Kogstad or remand to
the Commissioner for further proceedings. 42 U.S.C. § 405(g). “When an ALJ’s
decision is not supported by substantial evidence, . . . a remand for further proceedings
is the appropriate remedy unless the evidence before the court compels an award of
benefits.” Briscoe, 425 F.3d at 355. “[A]n award of benefits is appropriate only if all
factual issues have been resolved and the record supports a finding of disability.” Id. at
356. Because this standard has not been met, the Court remands the case for further
proceedings.
B.

New evidence
Kogstad also contends that his new evidence is material and requires remand to

the Commissioner. See 42 U.S.C. § 405. The Court has already concluded that the
ALJ’s decision must be remanded for further proceedings. Thus, it is unnecessary to
consider whether Kogstad’s new evidence would merit remand on its own. “Any
additional relevant evidence [he] desires to submit, however, should be considered on
remand.” Campbell v. Shalala, 988 F.2d 741, 745 (7th Cir. 1993) (ordering
consideration of new evidence on remand for lack of substantial evidence supporting
ALJ’s decision, even though court concluded in dicta that new evidence would not itself
justify remand).

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Conclusion
For the reasons stated above, the Court grants Kogstad’s motion for summary
judgment [docket no. 18] and denies the Commissioner’s [docket no. 24]. The Court
dire3cts the Clerk to enter judgment remanding the case to the Commissioner for further
proceedings consistent with this decision.

________________________________
MATTHEW F. KENNELLY
United States District Judge
Date: May 17, 2012

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