Kernstein v. Commissioner of Social Security

Filing 22

OPINION AND ORDER: The court DENIES Mr. Kernstein's request for remand and AFFIRMS the decision of the ALJ. This order terminates the case. Signed by Judge Damon R Leichty on 11/17/2021. (lhc)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
RODNEY L. KERNSTEIN,
Plaintiff,
v.

CAUSE NO. 1:20-CV-300 DRL

KILOLO KIJAKAZI1,
Commissioner of the Social Security
Administration,
Defendant.
ORDER AND OPINION
Rodney L. Kernstein appeals from the Social Security Commissioner’s final judgment denying
his disability insurance benefits. Mr. Kernstein requests remand of his claim for further consideration.
Having reviewed the underlying record and the parties’ arguments, the court denies Mr. Kernstein’s
request for remand (ECF 1) and affirms the Commissioner’s decision.
BACKGROUND
Mr. Kernstein suffers from a variety of physical and mental health impairments. Mr.
Kernstein’s severe physical impairments include degenerative disc disease, rheumatoid arthritis,
neuropathy, obesity, and asthma [R. 18]. Mr. Kernstein also suffers from the severe mental impairment
depression [R. 18].
Mr. Kernstein filed a Title II application for benefits on December 4, 2018, alleging disability
beginning June 17, 2017 [R. 15]. His application was denied initially on January 31, 2019, and again on
reconsideration on February 22, 2019 [Id.]. His claims were heard by an Administrative Law Judge
(ALJ) in a hearing on March 5, 2019 [Id.]. At the hearing, Mr. Kernstein amended his alleged onset

 Kilolo Kijakazi is now the commissioner of Social Security and is automatically substituted as a party pursuant
to Fed. R. Civ. P. 25(d). See also Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g) (action survives
regardless of any change in the person occupying the office of Commissioner of Social Security). 
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date to August 16, 2017, the date after the most recent prior denial of benefits [Id.]. In a November
12, 2019, decision, the ALJ denied Mr. Kernstein’s petition on the basis that he could not show that
he was disabled as defined by the Social Security Act [R. 12-14, 25-26].
Mr. Kernstein last met the insured status requirements of the Social Security Act on September
30, 2018 [R. 17]. The ALJ found that Mr. Kernstein has the residual functional capacity (RFC) to
perform light work as defined in 20 C.F.R. § 404.1567(b) with the following limitations: he must avoid
concentrated exposure to extreme heat, fumes, dusts, odors, gases, and poor ventilation [R. 20]. He is
limited to work with a moderate level of noise [Id.]. He is limited to work that can be learned in 30
days or less, with simple and routine tasks [Id.]. The ALJ found that Mr. Kernstein was unable to
perform any past relevant work [R. 24]. However, the ALJ found that he could perform a significant
number of jobs in the national economy [R. 24-25]. This decision became final when the Appeals
Council denied Mr. Kernstein’s request for review [R. 1].
STANDARD
The court has authority to review the Council’s decision under 42 U.S.C. § 405(g); however,
review is bound by a strict standard. Because the Council denied review, the court evaluates the ALJ’s
decision as the Commissioner’s final word. See Schomas v. Colvin, 732 F.3d 702, 707 (7th Cir. 2013). The
ALJ’s findings, if supported by substantial evidence, are conclusive and nonreviewable. See Craft v.
Astrue, 539 F.3d 668, 673 (7th Cir. 2008). Substantial evidence is that evidence which “a reasonable
mind might accept as adequate to support a conclusions,” Richardson v. Perales, 402 U.S. 389, 401 (1971),
and may well be less than a preponderance of the evidence, Skinner v. Astrue, 478 F.3d 836, 841 (7th
Cir. 2007) (citing Richardson, 402 U.S. at 401). If the ALJ has relied on reasonable evidence and built
an “accurate and logical bridge from the evidence to conclusion,” the decision must stand. Thomas v.
Colvin, 745 F.3d 802, 806 (7th Cir. 2014). Even if “reasonable minds could differ” concerning the

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ALJ’s decision, the court must affirm if the decision has adequate support. Simila v. Astrue, 573 F.3d
503, 513 (7th Cir. 2009) (quoting Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008)).
DISCUSSION
When considering a claimant’s eligibility for disability benefits, an ALJ must apply the standard
five-step analysis: (1) is the claimant currently employed; (2) is the claimant’s impairment or
combination of impairments severe; (3) do his impairments meet or exceed any of the specific
impairments listed that the Secretary acknowledges to be so severe as to be conclusively disabling; (4)
if the impairment has not been listed as conclusively disabling, given the claimant’s residual function
capacity, is the claimant unable to perform his former occupation; (5) is the claimant unable to perform
any other work in the national economy given his age, education, and work experience. 20 C.F.R.
§ 404.1520; Young v. Secretary of Health & Human Servs., 957 F.2d 386, 389 (7th Cir. 1992). The claimant
bears the burden of proof until step five, when the burden shifts to the Commissioner to prove that
the claimant can perform other work in the economy. See Young, 957 F.2d at 389.
Mr. Kernstein challenges the ALJ’s conclusion that he is not totally disabled. He presents four
arguments of error: (1) the ALJ erred in not accounting for the medical opinion of his treating
rheumatologist; (2) the ALJ did not properly account for all of his limitations in the RFC; (3) the ALJ
erred in considering his percentage improvement; and (4) the ALJ did not consider Dr. Kara’s opinion
that Mr. Kernstein was permanently disabled under Indiana’s IMPACT program.
A.

Dr. Anil Rao, Rheumatologist.

Mr. Kernstein asserts that the ALJ did not evaluate the opinion of his rheumatologist, Dr.
Rao. Mr. Kernstein asserts that paragraphs under “History of Present Illness” in two treatment notes
constitute a medical opinion. In these treatment notes, Dr. Rao notes that Mr. Kernstein suffers from
dull and achy pain intermittently in his wrists, hands, knees, ankles, and feet [R. 592]. Other symptoms
include dry eyes, fatigue, morning stiffness for one hour, paresthesia, SICCA symptoms, and

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fibromyalgia [Id.]. Dr. Rao stated that pain was aggravated by gripping, standing, walking, and cold or
rainy weather [Id.]. Finally, Dr. Rao noted that his medications relieved his pain [Id.]. Dr. Rao also
noted tenderness in his joints as well as mild pain with motion [R. 591]. Dr. Rao also noted that Mr.
Kernstein’s pain, stiffness, and limited daily activities are “related to fibromyalgia and degenerative
disc disease of spine” [R. 583, 591].
A medical opinion is defined as:
[A] statement from a medical source about what you can still do despite your
impairment(s) and whether you have one or more impairment-related limitations or
restrictions in the following abilities:
(i) Your ability to perform physical demands of work activities, such as sitting,
standing, walking, lifting, carrying, pushing, pulling, or other physical functions
(including manipulative or postural functions, such as reaching, handling,
stooping, or crouching);
(ii) Your ability to perform mental demands of work activities, such as
understanding; remembering; maintaining concentration, persistence, or pace;
carrying out instructions; or responding appropriately to supervision, coworkers, or work pressures in a work setting;
(iii) Your ability to perform other demands of work, such as seeing, hearing,
or using other senses; and
(iv) Your ability to adapt to environmental conditions, such as temperature
extremes or fumes.
20 C.F.R. § 404.1513(a)(2). The treatment notes from Dr. Rao don’t constitute a medical opinion. As
an initial matter, the narrative of observations in the “history of present illness” section merely reflects
a claimant’s “own subjective complaints about his symptoms.” Wieczorek v. Colvin, 2014 U.S. Dist.
LEXIS 104447, 23 (N.D. Ill. July 31, 2014). As such, observations in the “history of present illness”
section aren’t a medical opinion. Moreover, the “history of present illness” section offers no indication
of Mr. Kernstein’s ability to function or how his symptoms limit his functioning. Dr. Rao’s statements
and findings don’t constitute a medical opinion; neither his observations regarding Mr. Kernstein’s

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pain and tenderness nor his recitations of Mr. Kernstein’s subjective complaints provide any statement
regarding his functional limitations or abilities.
Moreover, though Dr. Rao found Mr. Kernstein’s limited daily activities are related to his
fibromyalgia and degenerative disc disease, he did not describe how Mr. Kernstein’s fibromyalgia or
degenerative disc disease limited him, not least when treated with medication [R. 583, 591]. Nor did
Dr. Rao provide any statements regarding “what [Mr. Kernstein] can still do despite [his]
impairment(s)” or whether he has restrictions in his abilities to complete the physical demands of
work. 20 C.F.R. § 404.1513(a)(2). As such, Dr. Rao’s finding that Mr. Kernstein’s complaints of limited
daily activities are due to his impairments is not a medical opinion.
Because Dr. Rao’s treatment notes don’t constitute a medical opinion, the ALJ did not “fail[]
her duty to evaluate Dr. Rao’s opinion” as Mr. Kernstein asserts [ECF 19 at 11]. The ALJ has no duty
to examine or evaluate treatment notes from Dr. Rao using the factors in 20 C.F.R. § 404.1520c,
absent a medical opinion. The majority of Mr. Kernstein’s arguments revolve around his assertion that
Dr. Rao’s treatment notes constitute a medical opinion. Mr. Kernstein argues that the ALJ did not
consider how multiple other medical opinions were consistent with or supported by Dr. Rao’s opinion.
However, the regulations clarify that Dr. Rao’s treatment notes do not constitute acceptable medical
opinions. Therefore, the ALJ wasn’t required to consider whether other opinions were consistent with
Dr. Rao’s treatment notes. Remand is not warranted on this issue.
B.

RFC.

Mr. Kernstein also asserts that the ALJ did not support the RFC determination with substantial
evidence. Specifically, Mr. Kernstein argues that a limitation to light work does not adequately
accommodate his impairments.
An ALJ’s RFC and hypothetical questions posed to the vocational expert must incorporate all
of the claimant’s limitations supported by the medical record. Varga v. Colvin, 794 F.3d 809, 813 (7th

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Cir. 2015) (quoting Yurt v. Colvin, 758 F.3d 850, 857 (7th Cir. 2014)). That said, an RFC is a measure
of what an individual can do despite the limitations imposed by his impairments. Young v. Barnhart,
362 F.3d 995, 1000 (7th Cir. 2004). The determination of an RFC is a legal decision rather than a
medical one. See Diaz v. Chater, 55 F.3d 300, 306 n.2 (7th Cir. 1995). An RFC “is an assessment of an
individual’s ability to do sustained work-related physical and mental activities in a work setting on a
regular and continuing basis. A ‘regular and continuing basis’ means 8 hours a day, for 5 days a week,
or an equivalent work schedule.” SSR 96-8p, 1996 LEXIS 5, at 1 (July 2, 1996).
Mr. Kernstein asserts that the ALJ didn’t consider his pulmonary condition or his obesity in
creating the RFC, and that the ALJ didn’t consider how his obesity may impact his back and leg pain.
However, the ALJ addressed Mr. Kernstein’s pulmonary impairments and found them to be well
managed with ongoing medication, and that his pulmonary function testing was often normal [R. 23].
The ALJ also considered his obesity, noting that the record consistently shows a BMI in excess of 36,
and found that it did not affect his ability to ambulate [R. 19, 22].
More problematically, Mr. Kernstein’s argument regarding his pulmonary impairments is one
sentence in a paragraph discussing Dr. Rao’s treatment notes, and his argument regarding his obesity
two sentences [ECF 19 at 11-12]. Mr. Kernstein argues that the ALJ didn’t consider a single note from
his pulmonologist from 2019 that stated if he lost weight, it would likely help his sleep issues [ECF 19
at 12]. These arguments are undeveloped. Mr. Kernstein simply argues that if the ALJ had considered
his pulmonary impairments and obesity, then the ALJ could not have logically concluded that he is
capable of light work. That argument is bereft of any explanation as to how these impairments further
limit his functioning. Nor does it offer any case law or regulations. Mr. Kernstein has not developed
an argument that the ALJ erred in considering his pulmonary impairments or obesity. See Krell v. Saul,
931 F.3d 582, 586 n.1 (7th Cir. 2019) (underdeveloped arguments are waived).

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C.

Dr. Fira Kara, Pain Management Specialist.

Mr. Kernstein argues that the ALJ erred in relying on percentage of improvement and
percentage of pain relief as described in Dr. Kara’s treatment notes to find that he was not as limited
in functioning as he alleged. He states that, though he reported improvement in pain, this did not
translate into improvement in functioning; and he argues that the ALJ ignored a note stating that he
reported “no change in ability to perform ADL’s” despite improvement [R. 514]. But Mr. Kernstein
ignores the sentence directly before that statement, which noted that Mr. Kernstein reported a 60
percent improvement in function since his last visit [Id.]. The ALJ properly relied on Dr. Kara’s
recitation of Mr. Kernstein’s own statements of 70 and 80 percent improvement in pain following his
lumbar branch blocks and lumbar radiofrequency ablations, as well as his statements of 60 percent
improvement in function [R. 22]. A single statement regarding “no change in ability to perform ADLs”
does not on its own indicate that Mr. Kernstein was either unable to perform ADLs or was limited by
his back pain, as he reported both pain relief and improvement in functioning with his pain
management treatment. The ALJ properly considered Dr. Kara’s treatment notes and did not err in
the analysis of Mr. Kernstein’s improvement with treatment.
D.

IMPACT Program.

Finally, Mr. Kernstein argues that the ALJ did not consider a 2018 opinion from Dr. Kara,
which stated that Mr. Kernstein required a permanent exemption from work under the Indiana
IMPACT program. Mr. Kernstein points to nothing in the medical record indicating that Dr. Kara
provided any such opinion, and the court can find nothing in the record to support his assertion that
Dr. Kara provided an opinion regarding his ability to work under the Indiana IMPACT program.
There is a note from Dr. Greenman that stated Mr. Kernstein requested a permanent exemption from
the IMPACT program [R. 706]. Dr. Greenman filled out the paperwork at that visit [R. 707]. More

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important, there is no indication in the record that this paperwork was accepted or that Mr. Kernstein
was found to be permanently exempt from work in the IMPACT program.
Even if Mr. Kernstein was granted permanent exemption from work under the Indiana
IMPACT program, there is no requirement for the ALJ either to analyze or rely on that decision.
“Decisions by other governmental agencies and nongovernmental entities” are “inherently neither
valuable nor persuasive.” 20 C.F.R. § 404.1520b(c)(1). Decisions by other governmental agencies and
nongovernmental entities about whether a person is disabled, employable, or entitled to any benefits
are based on the rules of that agency or entity, so aren’t binding on the SSA and provide no
information as to whether the person is disabled according to the SSA rules. 20 C.F.R. § 404.1504.
Approrpiately the ALJ “will not provide any analysis in [her] determination or decision about a
decision made by any other governmental agency or a nongovernmental entity about whether [the
claimant is] disabled, blind, employable, or entitled to any benefits.” Id. The ALJ did not err in leaving
any analysis of the (unseen) Indiana IMPACT paperwork out of the decision. There is no indication
of what was stated in the paperwork or if it was accepted by the program, and regardless of the
outcome, the ALJ had no duty to discuss the information in the decision.
CONCLUSION
Accordingly, the ALJ’s decision was based on substantial evidence. The court DENIES Mr.
Kernstein’s request for remand and AFFIRMS the decision of the ALJ. This order terminates the case.
SO ORDERED.
November 17, 2021

s/ Damon R. Leichty
Judge, United States District Court

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