Kurzhal v. Commissioner of Social Security

Filing 19

OPINION AND ORDER remanding case to the ALJ to fully and properly develop the administrative record. ***Civil Case Terminated. Signed by Chief Judge Philip P Simon on 1/27/2014. (kds)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
DONNIE DELBERT KURZHAL,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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3:13-cv-42 PPS

OPINION AND ORDER
Plaintiff Donnie Kurzhal appeals the Social Security Administration’s decision to deny
his application for disability insurance benefits. An administrative law judge found that Kurzhal
was not disabled within the meaning of the Social Security Act. As explained in detail below, I
find that the ALJ failed to adequately investigate Kurzhal’s claim that he is illiterate. I will
therefore remand this matter to the ALJ to fully and properly develop the administrative record.
BACKGROUND
Kurzhal applied for Disability Insurance Benefits and Supplemental Security Income in
December 2009. He alleged an onset date of November 1, 2008, the day he was laid off from his
job as a masonry laborer and supervisor. Kurzhal’s primary ailments are fibromyalgia,
osteoarthritis, and depression. He also claims to be illiterate.
Kurzhal began complaining of joint pain in April 2008. The pain was severe enough that
he had trouble sleeping at night. His primary care physician determined that Kurzhal had diffuse
arthritis, arthralgias (joint pain), and myalgias (muscle pain) stemming from his long history of

construction work [R. 370]. The doctor prescribed anti-inflammatories and noted that he would
consider referring Kurzhal to a rheumatologist if Kurzhal’s pain did not abate. [Id.]
In May 2009, about five months after his alleged disability onset date, Kurzhal
underwent successful total knee replacement surgery on his right knee [R. 255]. In addition to
the knee, Kurzhal was still experiencing severe joint pain at this time, so his physician went
ahead and referred him to a rheumatologist. The rheumatologist, Dr. Balog, eventually
diagnosed Kurzhal as having fibromyalgia in July 2009 [R. 320]. Dr. Balog was reluctant to
prescribe narcotics for fibromyalgia, so instead attempted to control Kurzhal’s pain with a mix of
antidepressants1 and non-narcotic pain medication [Id.]. Dr. Balog’s regimen did not seem to
work as Kurzhal continued to complain of severe pain [R. 318].
Kurzhal was eventually referred to Dr. Stephen Ribaudo for pain management [R. 394].
Dr. Ribaudo examined Kurzhal in February 2010 and determined he had bilateral rotator cuff
disease, thoracolumbar spondylosis (back pain), bilateral greater trochanteric bursitis (hip pain),
osteoarthritis in both knees, and bilateral plantar fasciitis [Id.]. Dr. Ribaudo prescribed
oxycodone and a different antidepressant. This proved effective at reducing Kurzhal’s pain [R.
396, 460-65].
In addition to fibromyalgia and osteoarthritis, Kurzhal has also claimed that he is
illiterate. Kurzhal underwent a literacy evaluation at the Literary Council of St. Joseph County
on November 16, 2010. According to the assessment, Kurzhal is not able to read or write [R. 8788]. He had difficulty reading even simple words like “today, does, three, from, under, began,

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Antidepressants are commonly used to treat fibromyalgia. See, e.g.,Fibromyalgia Medications,
http://www.webmd.com/fibromyalgia/guide/fibromyalgia-treatment-medications-that-can-and-cant-help

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name, there, could and again” [Id.]. Testing indicated that Kurzhal may have adult dyslexia
[Id.]. Dr. Ribaudo came to the same conclusion, noting on a couple of occasions that Kurzhal
did not know how to read and write and probably had a learning disability [R. 460-61, 468].
Kurzhal’s disability claim was denied initially on March 20, 2010, and upon
reconsideration on June 3, 2010. Kurzhal requested a hearing, which took place on August 4,
2011. At the hearing, Kurzhal testified that he was unable to do even basic activities because of
his pain [44-49]. He also testified that he was completely unable to read and write [R. 41]. His
sister, who he lives with, testified that Kurzhal was largely unable to function by himself because
of his pain and depression [R. 51-52]. A vocational expert also testified as to the various jobs
available when given different hypotheticals by the ALJ.
The ALJ issued a decision denying benefits on August 18, 2011 [R. 16-28.] The ALJ
employed the standard five-step analysis. At step one, the ALJ confirmed that Kurzhal had not
engaged in substantial gainful activity since his application date. At step two, the ALJ found
Kurzhal suffered severe impairments of fibromyalgia and osteoarthritis. At step three the ALJ
found that Kurzhal’s conditions did not satisfy any listed impairment. At step four, in analyzing
Kurzhal’s residual functional capacity, the ALJ found that Kurzhal could perform light work
with: no climbing of ladders, ropes, or scaffolds; no exposure to unprotected heights, but the
occasional balancing, stooping, crouching, crawling, kneeling, and climbing of stairs and ramps.
She also determined that Kurzhal was not illiterate, but rather had a limited education. At step
five, the ALJ found that Kurzhal could not perform past relevant work but that there were a
sufficiently significant number of jobs in the national economy that he could perform.

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The Appeals Council denied review, making the ALJ’s decision the final decision of the
Commissioner. Kurzhal timely sought review of that decision by filing this case.
DISCUSSION
My review of an ALJ’s decision to deny social security benefits is limited to determining
whether the decision is supported by substantial evidence. Young v. Barnhart, 362 F.3d 995,
1001 (7th Cir. 2004). “Evidence is substantial if a reasonable person would accept it as adequate
to support the conclusion.” Id. In other words, the ALJ’s decision, if supported by substantial
evidence and reached under the correct legal standard, will be upheld even if reasonable minds
could differ as to the appropriate conclusion. See Schmidt v. Apfel, 201 F.3d 970, 972 (7th Cir.
2000). It is not my job to re-weigh evidence, choose among conflicting versions of events,
decide questions of credibility, or substitute my own judgment for the ALJ’s. Young, 362 F.3d at
1001.
To receive disability benefits under the Social Security Act, a claimant must be
“disabled” as defined by the Act. 42 U.S.C. § 423(a)(1)(E). A claimant qualifies as disabled if
he is unable to “engage in any substantial gainful activity by reason of any medically
determinable physical or mental 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 12 months.” 42
U.S.C. § 423(d)(1)(A). Moreover, a claimant’s physical or mental impairment or impairments
must be of such severity that he is not only unable to do his previous work but cannot,
considering his age, education and work experience, engage in any other kind of substantial
gainful work which exists in the national economy. 42 U.S.C. § 423(d)(2)(A).
Kurzhal objects to the ALJ’s decision on three grounds:

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1. The ALJ failed to properly assess Kurzhal’s ability to read and write.
2. The ALJ failed to give controlling weight to the opinion of Dr. Ribaudo that
Kurzhal was disabled.
3. The ALJ failed to properly consider Kurzhal’s fibromyalgia.

[DE 11 at 10-15.]
Of these, the literacy issue looms largest. That is because, according to the Social
Security Administration’s Medical-Vocational Guidelines, if Kurzhal is illiterate and limited to
light work, he became disabled in January 2011 when he turned 50 years old and became an
“individual closely approaching advanced age.” 20 C.F.R. pt. 404, subpt P, App.2, § 2020.10.
The guidelines recognize that there are very few light work jobs available to older individuals
who can’t read or write. See Glenn v. Sec’y of Health and Human Services., 814 F.2d 387, 389
(7th Cir. 1987)
The SSA regulations provide that an individual is considered illiterate if the person
cannot read or write a simple message. 20 C.F.R. § 404.1564(b)(1). The ability to sign one’s
name is not determinative of literacy, nor is the amount of formal schooling a person has had.
Id.; Glenn, 814 F.2d at 389-90. Nevertheless, literacy is a low bar. The essential questions is
whether the applicant is so deficient in ability to read and write that she cannot obtain even an
unskilled job. Glenn, 814 F.2d at 391 (affirming finding that claimant was literate despite being
able to read and write only the simplest messages).
The next education category listed in the regulations is marginal education, which means
the “ability in reasoning, arithmetic, and language skills which are needed to do simple,
unskilled types of jobs.” 20 C.F.R. § 404.1564(b)(2). The next step up on the continuum is the

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category of “limited education” and this is the category that the ALJ determined that Kurzhal fit
into. A finding of limited education means the claimant has some ability in reasoning, arithmetic
and language skills, but not enough to do most of the more complex job duties needed in semiskilled or skilled jobs. 20 C.F.R. § 404.1564(b)(3). The guidelines associate limited education
with a seventh-grade through eleventh-grade level of formal education, but, again, the amount of
formal education is not determinative.
I cannot determine based on the record whether Kurzhal is illiterate as defined in the
regulations. There is certainly evidence that he is. Kurzhal testified that he is completely
illiterate; he said could not read or write at all [R. 41]. He also testified that, although he
attended school through tenth grade, he was in special education classes the whole time [Id.]. In
addition, there is the Literacy Council assessment, which concluded Kurzhal basically could not
read or write at all. He struggled to read even simple words like “does” and “three” [R. 87-88].
What’s more, Dr. Ribuado noticed the same thing, concluding that Kurzhal “does not
functionally know how to read and write” [R. 460]. Finally, Kurzhal’s ex-wife reported that he
was never able to follow written instructions well [R. 198].
On the other hand, as the ALJ pointed out, Kurzhal reported that he was able to pay bills,
use a checkbook and manage a savings account [R. 217]. The evidence regarding his education
is inconsistent, as Kurzhal initially reported that he did not attend any special education classes
and his school records don’t make clear how much special education he had [R. 171, 240-42].
At one time, Kurzhal reported to a doctor that he needed glasses for reading [R. 256]. But
whether he was just covering up his illiteracy with this vague reference is not at all clear. In
addition, he also answered “sometimes” to the ALJ’s question “[d]o you watch TV or read books

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or anything?” [R. 48]. Remarkably, the ALJ interpreted this answer as meaning he sometimes
reads books [R. 24]. But the question was a compound one. When Kurzhal said “sometimes”
was he referring to watching TV or reading (or both)? Finally, the ALJ pointed out that Kurzhal
did not bring up his alleged illiteracy until late in the appeals process.
In my view, there is just not enough evidence in the record to support the conclusion that
Kurzhal has a limited education. Once Kurzhal raised the issue of illiteracy, the ALJ had an
obligation to develop a complete record. McCormick v. Astrue, No. 1:11-cv-00328, 2012 WL
1886508, at *7 (N.D. Ill. May 23, 2012) citing Yourek v. Barnhart, 334 F. Supp. 2d 1090, 1093
(N.D. Ill. 2004). The ALJ could not simply rely on the fact that Kurzhal completed the tenth
grade, because, as the Seventh Circuit has pointed out, Kurzhal’s formal education may not have
taken. Glenn, 814 F.2d at 390. Rather, she had an obligation to determine what exactly Kurzhal
was capable of. In similar cases, ALJs have accomplished this by having the claimant attempt to
spell words or read simple passages at the hearing. See id. at 391 (claimant attempted to
demonstrate his illiteracy by reading a recipe); McCormick, 2012 WL 1886508 at *7-8
(claimant was asked to spell simple words and about his ability to read passages in the
newspaper); Cole v. Apfel, 98 C 6735, 2000 WL 290432, at *4 (N.D. Ill. March 17, 2000)
(noting that ascertaining the claimant’s literacy “would have involved a simple task such as
asking him to read aloud a short news article, or asking him to write a note”).
In this case, the ALJ did not ask for a demonstration. She simply asked if Kurzhal if he
could read or write. When he answered no, she asked one more question and then let the matter
drop [R. 41]. Sometimes, of course, it may not be necessary to delve as deeply into the
claimant’s literacy at the hearing. But this is not a case where the documentary record provided

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substantial evidence of literacy. The record is a mixed bag with strong evidence, in the form of
the Literacy Council assessment, supporting Kurzhal’s argument he is illiterate, and spottier
evidence, in the form of the school records and answers to ambiguous questions, supporting the
case against. Nor is this a case like Glenn, where it is possible to infer literacy from the
claimant’s former work. No such inference is possible here. Kurzhal worked as a mason in the
construction industry. His job likely required little, if any, reading or writing ability. Given the
circumstances, the ALJ should have taken the opportunity at the hearing to more fully explore
Kurzhal’s ability to read and write.
Another problem along the same lines is the ALJ failed to explain how she determined
Kurzhal fell into the limited education category as opposed to the lower, marginal education
category. The ALJ explained how she determined Kurzhal was not illiterate, but did not take the
next step and provide a “logical bridge” between her conclusion that he had a limited education
and the evidence she summarized earlier in her opinion. See Groves v. Apfel, 148 F.3d 809, 811
(7th Cir. 1998) (“[the ALJ’s] opinion fails to build a bridge from the evidence to the conclusion
and is thus analytically inadequate – in a word, unreasoned – we cannot uphold his decision.”);
Truckey v. Astrue, No. 2:10 cv 447, 2011 WL 5101883 (N.D. Ind. Oct. 27, 2011) (remanding for
ALJ’s failure to build a logical bridge to his conclusion that the claimant had a limited
education).
Accordingly, the ALJ’s finding of literacy is reversed. On remand, the question of
Kurzhal’s literacy should be fully developed and resolved. Because remand is necessary on this
issue, I need not address Kurzhal’s other arguments. Eskew v. Astrue, 462 Fed. App’x. 613, 615
(7th Cir. 2011) (given the court’s remand on one of claimant’s arguments, it “need not address

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[her] remaining arguments”); Fike v. Astrue, 2012 WL 1200670, at *10, n.6 (N.D. Ind. Apr. 10,
2012). On remand the ALJ should revisit Kurzhal’s other arguments as appropriate.
CONCLUSION
For the reasons stated above, this cause is REMANDED for further proceedings
consistent with this order.
SO ORDERED.
ENTERED: January 27, 2014

s/ Philip P. Simon
PHILIP P. SIMON, CHIEF JUDGE
UNITED STATES DISTRICT COURT

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