Kinas v. Commissioner of Social Security

Filing 19

OPINION AND ORDER: The court REMANDS this case for further proceedings consistent with this opinion. Signed by Judge Robert L Miller, Jr on 3/12/2018. (jss)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION

JENNIFER ANNE KINAS,
Plaintiff
vs.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant

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CAUSE NO. 3:17-CV-165 RLM-MGG

OPINION AND ORDER
Jennifer Kinas seeks judicial review of the final decision of the
Commissioner of Social Security denying her application for disability insurance
benefits under the Social Security Act, 42 U.S.C. § 423. The court has jurisdiction
over this action pursuant to 42 U.S.C. § 405(g). For the reasons that follow, the
court remands this case for further proceedings.
Mrs. Kinas asserts disability as of January 31, 2013. The ALJ found that:
(1)

Mrs. Kinas has insured status through December 31, 2018;

(2)

Mrs. Kinas didn’t engage in substantial gainful activity from January
31, 2013, the alleged onset date, through the date of the ALJ's
decision;

(3)

Mrs. Kinas had severe impairments including a triple negative breast
cancer of the left breast, status post lumpectomy; right shoulder

bursitis; neuropathy of the hands and feet; and anxiety. Her urinary
frequency wasn’t a severe impairment;
(4)

Mrs. Kinas didn’t have an impairment or combination of impairments
that meets or medically equals the severity of any of the impairments
listed in 20 C.F.R. Part 404, Subpart P, Appendix 1;

(5)

Evaluating Mrs. Kinas's mental functioning using the "paragraph B"
criteria, the ALJ found Mrs. Kinas had:
a)
b)
c)
d)

(6)

Mild limitations in activities of daily living;
Mild limitations in social functioning;
Moderate limitations in concentration, persistence or
pace; and
No episodes of decompensation (Mrs. Kinas has insured
status through December 31, 2018;

Mrs. Kinas didn’t engage in substantial gainful activity from January
31, 2013, the alleged onset date, through the date of the ALJ's
decision;

(7)

Mrs. Kinas had the residual functional capacity to perform light work
as defined in 20 C.F.R. § 404.1567(b) "except that she can lift up to
20 pounds occasionally and up to 10 pounds frequently. She can
stand and/or walk about 6 hours and sit up to 6 hours in an 8-hour
workday. She can sit and/or stand if not taken off task. She can
occasionally climb ladders, ropes, scaffolds, ramps, stairs, balance,
and stoop, kneel, crouch or crawl. The claimant can reach forward
and to the side, with the bilateral upper extremities occasionally. She
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can occasionally reach overhead with the bilateral upper extremities.
The claimant can push and/or pull with the bilateral upper
extremities occasionally. The claimant can occasionally handle and
finger with the bilateral upper extremities. The claimant can
occasionally operate foot controls with the bilateral lower extremities.
The claimant is limited to simple, routine and repetitive tasks, but
she is unable to perform work that would require directing others,
abstract thought or planning, and which would involve only simple
work related decisions and routine workplace changes. The claimant
is limited to work that can be performed at a flexible pace, free of fast
paced production requirements, and free of quotas. The claimant is
limited to work that does not require tandem tasks or teamwork
where one production requirement is dependent upon the prior;"
(8)

Mrs. Kinas was unable to perform any past relevant work;

(9)

There were a significant number of jobs in the national economy that
Mrs. Kinas could perform including investigator, dealer accounts
(DOT # 241.367-038) and counter clerk (DOT# 249.366-010).

Based on those findings and conclusions, the ALJ decided that Mrs. Kinas
wasn't entitled to disability benefits because she wasn’t disabled as defined in the
Social Security Act. When the Appeals Council denied her request for review, the
ALJ's decision became the final decision of the Commissioner. Sims v. Apfel, 530

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U.S. 103, 107 (2000); Jones v. Astrue, 623 F.3d 1155, 1160 (7th Cir. 2010). This
appeal followed.
Mrs. Kinas asserts that the ALJ improperly weighed the treating source
opinions, improperly evaluated the credibility of her subjective complaints, and
made vocational findings upon legal error and without substantial evidence. Mrs.
Kinas asks the court to either reverse the Commissioner's decision and award
benefits or remand the case for further proceedings.

I. STANDARD OF REVIEW
The issue before the court isn’t whether Mrs. Kinas is disabled, but whether
substantial evidence supports the ALJ’s decision that she is not. Scott v. Astrue,
647 F.3d 734, 739 (7th Cir. 2011); Nelms v. Astrue, 553 F.3d 1093, 1097 (7th Cir.
2009). Substantial evidence means “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Richardson v. Perales, 402
U.S. 389, 401 (1971); Jones v. Astrue, 623 F.3d 1155, 1160 (7th Cir. 2010). In
reviewing the ALJ’s decision, the court can’t reweigh the evidence, make
independent findings of fact, decide credibility, or substitute its own judgment for
that of the Commissioner, Simila v. Astrue, 573 F.3d 503, 513 (7th Cir. 2009);
Powers v. Apfel, 207 F.3d 431, 434-435 (7th Cir. 2000), but, instead, must
conduct “a critical review of the evidence, considering both the evidence that
supports, as well as the evidence that detracts from, the Commissioner’s

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decision.” Briscoe v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005). While the ALJ
isn’t required “to address every piece of evidence or testimony presented, he must
provide a ‘logical bridge’ between the evidence and the conclusions so that [the
court] can assess the validity of the agency’s ultimate findings and afford the
claimant meaningful judicial review.” Jones v. Astrue, 623 F.3d 1155, 1160 (7th
Cir. 2010). “At a minimum, an ALJ must articulate his analysis of the evidence in
order to allow the reviewing court to trace the path of his reasoning and to be
assured that the ALJ considered the important evidence.” Ali v. Colvin, No. 2:14CV-305, 2015 WL 5474636, at *2 (N.D. Ind. Sept. 15, 2015).

II. DISCUSSION
Mrs. Kinas first argues that the ALJ improperly weighed the opinion
evidence of her treating physicians, Dr. Gong and Dr. Chughtai. The ALJ
acknowledged that Drs. Gong and Chughtai were Mrs. Kinas’s treating neurologist
and primary care doctors, but didn’t acknowledge that their opinions were entitled
to considerable deference even if they didn’t meet the criteria for controlling
weight. The ALJ should have considered the record as a whole in evaluating the
opinions, instead of selectively evaluating specific limitations in the opinions
based on isolated evidence in the record to reach unsupported conclusions.
Both of Mrs. Kinas’s treating physicians offered several medical opinions:
– Mrs.Kinas could occasionally lift less than 10 pounds.

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– She could stand and/or walk less than one hour in an 8-hour workday.
– Pushing and/or pulling is limited in the upper/lower extremities due to
neuropathy.
– Handling and fingering is limited to occasionally due to the neuropathy.
The commissioner argues that the ALJ gave portions of this opinion some weight,
because they account for Mrs.Kinas’s neuropathy to her hands and her mild
handgrip weakness.
The ALJ didn’t give much weight to the opinion that Mrs. Kinas can
occasionally lift less than 10 pounds because she found that Mrs. Kinas had
“normal strength” in the upper extremities. The ALJ also found that Mrs. Kinas
was “doing well, had no dyspnea and her energy had improved” after she
completed her chemotherapy and radiation. The ALJ didn’t give much weight to
the opinion that Mrs. Kinas could stand and/or walk less than one hour in an
eight-hour workday, either. The ALJ found that Mrs. Kinas had “normal gait,
normal station, and normal strength in the lower extremities.”
The ALJ also gave little weight to the treating physicians’ opinions about
Mrs. Kinas's mental limitations. Although the treating physicians opined that Mrs.
Kinas has no ability to function independently, they also reported that Mrs. Kinas
has good use of judgment and mild memory loss. The ALJ also considered some
of Mrs. Kinas’s testimony: she stays home during the day while her husband is at
work, she makes simple meals for herself, performs household chores, watches

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TV, interacts with friends and relatives by either using the phone or texting, and
uses the computer. The ALJ found that Mrs. Kinas’s testimony didn’t seem to
support the treating physicians’ opinions of her inability to function
independently. The ALJ also noted that neither Dr. Gong nor Dr. Chughtai are
qualified mental health specialists; their practices are neurology and family
medicine, respectively.
The Commissioner asserts that the ALJ properly considered the opinions of
Drs. Gong and Chughtai; she specifically explained why she accepted certain parts
of their opinions and not others. The ALJ didn’t simply “rubber stamp” the
opinions of the state agency consultants. Although the ALJ gave great weight to
the opinions of the state agency medical and psychological consultants, the ALJ
found that Mrs. Kinas was somewhat more limited than they thought in certain
areas.
Mrs. Kinas says the ALJ ignored contrary evidence, such as the treating
physicians' explanation that the upper extremity limitations were necessary
because of pain and edema following surgery for breast cancer (with lymph node
removal), and the physicians’ findings of neuropathy following chemotherapy and
post-chemotherapy neuropathy. Mrs. Kinas asserts that her treating physicians’
opinions and explanations are supported by the medical record, including clinical
findings/reports of weakness in the bilateral upper extremities, hand numbness
and tingling that disturbed Mrs. Kinas's sleep, hand weakness that made it

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difficult for her to open containers, difficulty with fine motor skills, and bilateral
upper extremity weakness with mild handgrip weakness. In addition, Mrs. Kinas
frequently

had

abnormal

clinical

findings

during

her

treating

source

examinations, which she says the ALJ didn’t contrast with the more benign
evidence.
The ALJ weighed the opinion evidence of Mrs. Kinas’s treating physicians
improperly. "If [the treating physician's medical opinion] is well supported and
there is no contradictory evidence, there is no basis on which the administrative
law judge, who is not a physician, could refuse to accept it. Once well-supported
contradicting evidence is introduced, the treating physician's evidence is no longer
entitled to controlling weight." Bauer v. Astrue, 532 F.3d 606, 608 (7th Cir. 2008).
At that point, "the treating physician's evidence is just one more piece of evidence
for the administrative law judge to weigh . . . [t]he [treating-physician] rule goes
on to list various factors that the administrative law judge should consider, such
as how often the treating physician has examined the claimant, whether the
physician is a specialist in the condition claimed to be disabling, and so forth. The
checklist is designed to help the administrative law judge decide how much weight
to give the treating physician's evidence." Id. Seeming differences between medical
opinions and the record don't always constitute valid reasons for discounting the
opinions of treating physicians. Oakes v. Astrue, 258 Fed. App'x 38, 44 (7th Cir.

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2007); see also Gudgel v. Barnhart, 345 F.3d 467, 470 (7th Cir. 2003) ("[a]
contradictory opinion of a non-examining physician does not, by itself, suffice.").
When addressing Mrs. Kinas’s physical restraints, the ALJ indicated
opinions to which she gives little weight, and explained that discounting by setting
forth facts about Mrs. Kinas's non-work activities. With respect to some of the
opinions, the ALJ's explanation continued with a "furthermore" and a reference
to what might be a contradictory part of the doctor's report, such as tests given
on an examination day for extremity strength, or memory or gait. But the primary
reason for discounting the treating physicians’ opinions—to the court’s
understanding—was Mrs. Kinas’s daily activities, her family vacation, and
weekend camping trips. The ALJ never circled back to explain precisely why those
activities are inconsistent with the treating physicians' opinions.
Lastly, Mrs. Kinas argues that the ALJ didn’t properly evaluate the
credibility of Mrs. Kinas’s symptoms and limitations. Regarding Mrs. Kinas’s
credibility, the ALJ stated:
The claimant prepares simple meals, dusts, vacuums, and does the
laundry (hearing testimony). She reported that she shops with her
husband once a week, and that it takes a few hours, despite testifying
that it usually takes about 20 minutes. Moreover, she reported that
she goes to Aldi's, Wal-Mart, church, doctor appointments, out to eat,
and to the Pink Survivor's support group. The claimant, despite
alleging disabling neuropathy to the hands and feet, was able to
make the 13 hour drive to Florida last year, where they rented a
condominium and spent time on the beach. Moreover, she testified
that in the summer, they go camping about once every three weeks
to Potato Creek State Park. Despite alleging brain fog and an inability
to concentrate, the claimant watches 3 hours of TV daily, including
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reality TV, crime shows and documentaries. She reads magazines and
online. She texts others, goes on Face book, and plays games on the
computer. While she testified that she does not handle the household
bills, she further testified that her husband has always had primary
responsibility for the financial affairs.

The commissioner maintains that the ALJ considered the testimony of both
Mrs. Kinas and her husband concerning her limitations. Based on the testimony,
the ALJ limited Mrs. Kinas to simple, routine and repetitive tasks, which is
basically performing the same job on a daily basis, and to work that wouldn't
require directing others, abstract thought or planning, and which would involve
only simple work related decisions and routine workplace changes.
But the ALJ didn't explain how her activities of daily living equated to the
ability to sustain a full-time job. The substantial evidence standard requires the
ALJ to build a “logical bridge” between the evidence and her credibility finding
conclusion. Pepper v. Colvin, 712 F.3d 351, 362 (7th Cir. 2013). While this
standard doesn’t require an ALJ to evaluate every item of evidence in the record,
it does require that she grapple with evidence that might run counter to her
conclusion, and highlighting only the favorable evidence isn’t sufficient. See Moore
v. Colvin, 743 F.3d 1118, 1123 (7th Cir. 2014) ("The ALJ must confront the
evidence that does not support [his] conclusion and explain why that evidence was
rejected.").
The ALJ was plainly struck by Mrs. Kinas’s ordinary activities. Fifteen times
in a nine-page stretch, the ALJ referred to Mrs. Kinas’s ability to dust, do laundry,
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run the vacuum, text, use the computer, make simple meals, shop with her
husband, go to church and to her cancer survivor meetings, watch 3 hours of TV
daily (including reality TV, true crime shows, and documentaries), read
magazines, go on social media, play easy computer games, go camping every three
weeks, and make a thirteen-hour ride to Florida and back.
“The critical differences between activities of daily living and activities in a
full-time job are that a person has more flexibility in scheduling the former than
the latter, can get help from other persons . . . and is not held to a minimum
standard of performance, as she would be by an employer.” Ghiselli v. Colvin, 837
F.3d 771, 778 (7th Cir. 2016) (quoting Bjornson v. Astrue, 671 F.3d 640, 647 (7th
Cir. 2012) (also collecting cases)); see also Stage v. Colvin, 812 F.3d 1121, 1126
(7th Cir. 2016) (finding that the ALJ improperly based his adverse credibility
determination on, among other things, the claimant's ability to care for herself and
her grandchildren); Roddy v. Astrue, 705 F.3d 631, 639 (7th Cir. 2013) (observing
that “[w]e have repeatedly cautioned that a person's ability to perform daily
activities, especially if that can be done only with significant limitations, does not
necessarily translate to an ability to work full-time.”).
The court of appeals warned in Ghiselli against using successful
performance of activities of daily living as a basis to find claims of disability not
credible, and this case underscores that warning. Despite the frequency of
reference to those daily activities, the ALJ never said just how those activities

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refuted what Mrs. Kinas, her husband, and both treating physicians say. The ALJ
didn't say, and couldn't appear to know from this record, how long it takes Mrs.
Kinas to do those tasks, or how well she does them; without that information, the
court can’t determine how those activities led the ALJ to discount the claims of
neuropathy. Without some way to evaluate Mrs. Kinas’s understanding and
retention, television shows and computer activities wouldn't seem to tell the court
anything about her memory loss. Without knowing the activities Mrs. Kinas
engaged in while camping or on vacation, there’s no logical bridge from those
activities to Mrs. Kinas's ability to find work in the job market. On remand, the
ALJ should ensure that her credibility determination is reasoned and supported.

III. CONCLUSION
The evidence of record isn’t so one-sided as to justify an order for benefits;
the ALJ’s opinion lacked explanation, not evidence. The court REMANDS this case
for further proceedings consistent with this opinion.
SO ORDERED.
ENTERED: March 12, 2018

/s/ Robert L. Miller, Jr.
Judge
United States District Court

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