KINLEY v. ASTRUE
Filing
22
ENTRY REVIEWING THE COMMISSIONER'S DECISION - The Court VACATES the ALJ's decision denying Mr. Kinley benefits and REMANDS this matter for further proceedings pursuant to 42 U.S.C. § 405 (g) (sentence four). Final judgment will issue accordingly. Signed by Judge Jane Magnus-Stinson on 2/8/2013.(JD)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
MICHAEL C. KINLEY,
Plaintiff,
vs.
MICHAEL ASTRUE,
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.
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1:12-cv-740-JMS-DKL
ENTRY REVIEWING THE COMMISSIONER’S DECISION
Plaintiff Michael C. Kinley applied for Supplemental Security Income benefits on
November 10, 2008. His application was denied both initially and after reconsideration by the
Defendant, Commissioner of the Social Security Administration (the “Commissioner”).
Administrative Law Judge James R. Norris (the “ALJ”) held a hearing in November 2010 and
later issued a decision that Mr. Kinley was not entitled to disability benefits. Mr. Kinley has
filed this action under 42 U.S.C. § 405(g), asking the Court to review his denial of benefits. For
the following reasons, the Court vacates the ALJ’s decision and remands this matter for further
proceedings.
I.
RELEVANT BACKGROUND
Mr. Kinley was nineteen years old at the time he filed his application in November 2008.
[Dkt. 14-2 at 25.] He has a history of muscular dystrophy from childhood, a history of partial
complex seizures that started at the age of thirteen, and is functionally illiterate. [Id. at 37-38,
46.]
Mr. Kinley claims that he is disabled because of the following severe impairments
recognized by the ALJ: asthma; seizures; congenital myopathy, type II atrophy; and borderline
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intellectual functioning. [Id. at 19.] He also alleges that he suffers from frequent migraines.
[Id.]
Mr. Kinley received special education assistance and finished the 10th grade. [Dkt. 18 at
7.] He lives with his parents, [dkt. 14-5 at 4], who are his legal guardians, [dkt. 14-10 at 103].
For a short time, Mr. Kinley worked five or six hours a week at a pharmacy through a vocational
program at the high school, but he lost that job because he had to miss work too many times
because of his medical conditions. [Dkt. 14-2 at 54-55.] At the hearing before the ALJ, Mr.
Kinley testified that when he stood on his feet at work his legs would start cramping and he had
to rub them. [Id. at 52.] After working for a few hours, Mr. Kinley would need to take pain
medication and lay down for 2.5 hours until his legs stopped cramping. [Id.]
Mr. Kinley has received medical treatment, and the relevant portions of that treatment
will be described in detail as needed to address the issues raised on appeal. Additional facts will
be provided as necessary.
II.
STANDARD OF REVIEW
The Court’s role in this action is limited to ensuring that the ALJ applied the correct legal
standards and that substantial evidence exists for the ALJ’s decision. Barnett v. Barnhart, 381
F.3d 664, 668 (7th Cir. 2004) (citation omitted).
For the purpose of judicial review,
“[s]ubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Id. (quotation omitted). Because the ALJ “is in the best position to
determine the credibility of witnesses,” Craft v. Astrue, 539 F.3d 668, 678 (7th Cir. 2008), the
Court must afford the ALJ’s credibility determination “considerable deference,” overturning it
only if it is “patently wrong.” Prochaska v. Barnhart, 454 F.3d 731, 738 (7th Cir. 2006)
(quotations omitted).
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If the ALJ committed no legal error and substantial evidence exists to support the ALJ’s
decision, the Court must affirm the denial of benefits. Otherwise the Court will remand the
matter back to the Social Security Administration for further consideration; only in rare cases can
the Court actually order an award of benefits. See Briscoe v. Barnhart, 425 F.3d 345, 355 (7th
Cir. 2005).
To evaluate a disability claim, an ALJ must use the following five-step inquiry:
(1) [is] the claimant…currently employed, (2) [does] the claimant ha[ve] a severe
impairment, (3) [is] the claimant’s impairment…one that the Commissioner
considers conclusively disabling, (4) if the claimant does not have a conclusively
disabling impairment,…can [he] perform his past relevant work, and (5) is the
claimant…capable of performing any work in the national economy[?]
Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001) (citations omitted). After step three,
but before step four, the ALJ must determine a claimant’s Residual Functional Capacity
(“RFC”), which represents the claimant’s physical and mental abilities considering all of the
claimant’s impairments. The ALJ uses the RFC at step four to determine whether the claimant
can perform his own past relevant work and if not, at step five to determine whether the claimant
can perform other work. See 20 C.F.R. § 416.920(e).
III.
THE ALJ’S DECISION
Using the five-step sequential evaluation set forth by the Social Security Administration,
the ALJ determined that Mr. Kinley was not disabled. [Dkt. 14-2 at 26.]
At step one of the analysis, the ALJ found that Mr. Kinley had not engaged in substantial
gainful activity1 since the alleged onset date of his disability. [Id. at 19.]
1
Substantial gainful activity is defined as work activity that is both substantial (i.e., involves
significant physical or mental activities) and gainful (i.e., work that is usually done for pay or
profit, whether or not a profit is realized). 20 C.F.R. § 404.1572(a) and § 416.972(a)-(b).
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At step two, the ALJ identified four severe impairments2 from which Mr. Kinley suffers:
asthma; seizures; congenital myopathy, type II atrophy; and borderline intellectual functioning.
[Dkt. 14-2 at 19.] The ALJ found that although Mr. Kinley alleged frequent migraines, “the
medical evidence of record fails to support that these migraines occur at a frequency that would
impose any work restrictions. Accordingly, said impairment is nonsevere.” [Id.]
At step three, the ALJ considered various listings, but found that Mr. Kinley’s
impairments did not meet or medically equal those listings. [Id. at 18-20.] Mr. Kinley does not
challenge the ALJ’s determination that he did not meet or medically equal a listing. Mr. Kinley
does, however, challenge the adequacy of the ALJ accounting for his moderate difficulties in
concentration, persistence, and pace by limiting him to simple, repetitive tasks. [Id. at 21.]
At step four, the ALJ found that Mr. Kinley had the RFC to perform medium work, with
various limitations. [Id.] Specifically, the ALJ found that Mr. Kinley could not “more than
occasional balancing and climbing of stairs; frequent stooping, kneeling, crawling; no climbing
of ladders, ropes, or scaffolds; avoid exposure to unprotected heights and dangerous hazards; no
concentrated exposure to temperature extremes, fumes and respiratory irritants; only simple and
repetitive works; only verbal instructions; only occasional contact with general public and
coworkers; and no requirement for high stress or high level of production.” [Id. at 21-22.]
In connection with step four, the ALJ relied on Mr. Kinley’s activities of daily living,
among other things, to conclude that his “allegations of pain, other symptoms, and functional
limitations are not found to be entirely credible.” [Id. at 24.] The ALJ also afforded limited
weight to the opinions of Mr. Kinley’s treating sources. [Id. at 25.]
2
An impairment is “severe” within the meaning of the regulations if it significantly limits an
individual’s ability to perform basic work activities. See 20 C.F.R. § 404.1520(c); 20 C.F.R. §
416.920(c).
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At step five, the ALJ determined that Mr. Kinley has no past relevant work but that
considering his age, education, work experience, and RFC, there are jobs that exist in significant
numbers in the national economy that he could perform. [Id. at 26.] The ALJ cited the
vocational expert’s testimony that given his limitations, Mr. Kinley could perform the positions
of hand packager, church janitor, and hospital cafeteria worker. [Id.] Based on these findings,
the ALJ concluded that Mr. Kinley was not disabled. [Id.]
IV.
DISCUSSION
Mr. Kinley challenges the ALJ’s decision for a variety of reasons, which the Court
consolidates and restates as follows: 1) that the ALJ erred by relying on medical expert Dr.
Fischer instead of Mr. Kinley’s treating sources, and by cherry-picking evidence supporting Dr.
Fischer’s conclusion; 2) that the ALJ erred by accounting for Mr. Kinley’s moderate difficulties
in concentration, persistence, and pace by limiting him to simple, repetitive tasks; 3) that the ALJ
failed to address Mr. Kinley’s testimony that he suffers from debilitating migraine headaches;
and 4) that the ALJ erroneously determined that Mr. Kinley was not credible for a variety of
reasons, including that he could engage in various activities of daily living.
The Commissioner defends the ALJ’s decision on all but the last point, which the Court
finds to be an appropriate place to begin its analysis.
A. Relying on Activities of Daily Living
The ALJ found that Mr. Kinley engaged in the following daily activities:
watching television; playing video games; feeding his dog; and visiting with
friends. He can perform all of his personal hygiene activities independently,
such as feeding and bathing himself, and prepar[ing] his own meals. Other
various household chores [Mr. Kinley] can perform include laundry tasks and
mowing the yard. He leaves his home daily and visits with friends. He can go
shopping, but cannot handle money, per third party reports. Other social
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activities include going to church, working[3], movies, going to library,
basketball, and talking with friends. No problems in getting along with others
were reported. He experiences problems with reading, and clearly does better
with verbal instructions.
[Dkt. 14-2 at 24.]
The ALJ made an adverse credibility finding regarding Mr. Kinley’s
allegations of pain, other symptoms, and functional limitations. [Id.]
Mr. Kinley argues that the ALJ improperly relied on these activities of daily living in
making an adverse credibility finding. [Dkt. 18 at 33.] The Commissioner does not respond to
this argument, and it is unclear whether this is a tacit admission by the Commissioner that the
ALJ erred or whether it was an oversight. Either way, the Commissioner has waived any
response. See Williams v. REP Corp., 302 F.3d 660, 666 (7th Cir. 2002) (holding that in
response to a motion, “[a] party waives any argument that it does not raise before the district
court”).
An ALJ can consider a claimant’s daily activities when assessing his alleged symptoms,
but the Seventh Circuit Court of Appeals has “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 v. Astrue, 539 F.3d 668, 680 (7th Cir. 2008)
(referencing 20 C.F.R. § 404.1529). Just last month, that Court strongly criticized the common
practice of ALJs equating activities of daily living to employment. Specifically, “[t]he 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
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It is unclear why the ALJ says that Mr. Kinley works, considering he found he has not engaged
in substantial gainful activity since the date of the application and has no past relevant work. If
the ALJ was referring to Mr. Kinley’s limited employment with CVS through a high school
vocational program, as Mr. Kinley points out, the ALJ ignored that Mr. Kinley lost that job
because he missed too much work because of his functional impairments, even though CVS tried
to accommodate his limitations. [Dkt. 18 at 31.]
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is not held to a minimum standard of performance, as [he] would be by an employer.” Hughes v.
Astrue, --- F.3d ---, 2013 U.S. App. LEXIS 1012, *6-7 (7th Cir. 2013).
The Court agrees with Mr. Kinley that the ALJ erred by relying on his basic activities of
daily living to support an adverse credibility finding. While some of Mr. Kinley’s activities may
properly be considered, such as his ability to leave the house, the ALJ relies on numerous
improper considerations, such as Mr. Kinley’s ability to feed, bathe, and eat independently and
do household chores. The ALJ also ignored that Mr. Kinley lives with his parents, who are his
legal guardians and can assist him with various activities of daily living.
Because the
Commissioner does not respond to Mr. Kinley’s argument and the Court cannot conclude that
this error was harmless, this case must be reversed and remanded.
B. Limitation to Simple, Repetitive Tasks
Mr. Kinley points to another error with the ALJ’s decision—the ALJ attempted to
account for Mr. Kinley’s psychological limitations by limiting him to simple, repetitive tasks.
[Dkt. 18 at 25 (referencing dkt. 14-2 at 21).]
Specifically, the ALJ found Mr. Kinley’s
difficulties with regard to concentration, persistence, and pace to be “moderate” but concluded
that “a restriction to simple repetitive tasks encompasses that restriction.” [Dkt. 14-2 at 21.] The
Commissioner argues that the testimony of medical expert Dr. Thomas supports the ALJ’s
conclusion. [Dkt. 19 at 13.]
The Seventh Circuit has repeatedly held that limiting a claimant who has limitations of
concentration, persistence, and pace to “simple, routine tasks” “d[oes] not adequately account for
the plaintiff’s medical limitations, including an impairment in concentration.” Stewart v. Astrue,
561 F.3d 679, 684-85 (7th Cir. 2009); see also O’Connor-Spinner v. Astrue, 627 F.3d at 614,
618-19 (7th Cir. 2010) (limiting claimant to “routine, repetitive tasks with simple instructions”
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did not account for “moderate limitation on concentration, persistence and pace”)4; see also
Social Security Ruling 85-15, 1985 WL 56857, *6 (SSR 1985) (“Because response to the
demands of work is highly individualized, the skill level of a position is not necessarily related to
the difficulty an individual will have in meeting the demands of the job. A claimant’s condition
may make performance of an unskilled job as difficult as an objectively more demanding job.”).
The ALJ attempted to distinguish the Stewart case in his opinion with the following
language:
With regard to concentration, persistence or pace, the claimant has more
“moderate” difficulties. Thus, no functional consequence of the claimant’s
limitation in this area are found beyond an inability to sustain detailed or complex
work processes, and, in the case at hand, a restriction to simple repetitive tasks
encompasses that restriction. The Administration’s regulations require
categorization of the claimant’s level of mental functioning using different terms
at steps three and four of the sequential evaluation, but nothing is found to
indicate that the claimant’s “moderate” deficiency at step three represents a
separate functional limitation, or one that is different in degree, from the
restriction to simple, repetitive tasks that I have assessed below, at step four. (Cf.
Stewart v. Astrue, 561 F.3d 679 (7th Cir. 2009)).
[Dkt. 14-2 at 21.]
The Court is aware of a growing trend reflecting the use of similar, and in some cases
nearly identical, language in ALJ opinions discussing the step three analysis.
See, e.g.,
Nickerson v. Astrue, 2013 U.S. Dist. LEXIS 15817 (S.D. Ind. 2013). The Court finds this
language confusing and essentially meaningless, and cautions that the use of this language does
not excuse compliance with Stewart and other cases requiring the ALJ to specifically consider
and address how a claimant’s impairments will affect his ability in the workplace, rather than
simply crafting an RFC that exempts them from certain types of work.
4
While O’Conner-Spinner sets forth some exceptions to this rule, the Commissioner did not
argue that an exception to the general rule applies.
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The Court concludes that, unlike in Nickerson, the ALJ here did not build a logical bridge
from his finding that Mr. Kinley suffered from moderate difficulties with concentration,
persistence, and pace to his conclusion that a restriction to simple, repetitive tasks was adequate.
The Commissioner argues that the testimony of medical expert Dr. Thomas supports the ALJ’s
conclusion, [dkt. 19 at 13], but the ALJ did not reference Dr. Thomas’ testimony as support for
that conclusion, [dkt. 14-2 at 21]. The Court cannot rely on the Commissioner’s post-hoc
rationale for the ALJ’s decision. See Parker v. Astrue, 597 F.3d 920, 922 (7th Cir. 2010)
(emphasizing that the Chenery doctrine “forbids an agency’s lawyers to defend the agency’s
decision on grounds that the agency itself had not embraced”). The Commissioner presents no
other argument on this point, and the Court concludes that this is another basis on which to
reverse and remand this action.
C. Additional Arguments
Because the Court has already determined that remand is appropriate on two separate
bases, it will only summarily address the additional arguments raised by Mr. Kinley.
1) Evidence of Migraine Headaches
Throughout his brief, Mr. Kinley argues that the ALJ ignored evidence of Mr. Kinley’s
migraine headaches.
[Dkt. 18 at 22 (pointing out that Dr. Fischer did not remember any
evidence of migraines), 29 (arguing that the ALJ failed to address Mr. Kinley’s testimony about
his migraines), 33 (“Notably, the ALJ completely failed to address the claimant’s testimony that
he suffered from regular migraine headaches . . . .”).] But as the Commissioner points out, the
ALJ acknowledged evidence of Mr. Kinley’s migraines but cited evidence from Mr. Kinley’s
neurologist that he was considered to be stable. [Dkt. 14-2 (citing dkt. 14-9 at 68-71 (medical
records noting that on three out of four visits, Mr. Kinley represented he was not having
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migraines).] Therefore, the Court concludes that the ALJ did not err by concluding that “the
medical evidence in the record fails to support that these migraines occur at a frequency that
would impose any work restrictions.” [Dkt. 14-2 at 19.]
2) Weight Given to Treating Physicians’ Opinions
Mr. Kinley criticizes the ALJ’s decision to rely on the opinion of medical expert Dr.
Fischer instead of on the opinions of his treating physicians that he had muscle weakness in his
legs that caused functional limitations.
[Dkt. 18 at 19-25.]
He argues that Dr. Fischer’s
testimony was based on an “incomplete and inaccurate review of the medical evidence” because
Dr. Fischer ignored evidence of Mr. Kinley’s weakened lower extremity strength. [Id. at 22.] In
a related argument, Mr. Kinley argues that both Dr. Fischer and the ALJ cherry-picked the
evidence supporting their conclusions while ignoring other evidence favoring a disability
finding. [Id. at 25-27.]
While the Commissioner acknowledges that there is evidence in the record supporting
Mr. Kinley’s weakened leg muscle strength, it emphasizes that Dr. Fischer and the ALJ relied on
a report by Dr. Djodjeva that Mr. Kinley had “muscle strength [of] 5 out of 5 in all muscles.”
[Dkt. 19 at 10 (citing dkt. 14-10 at 52).] As an initial matter, the Court notes that the ALJ
actually cited a report from Dr. Rhoades, not Dr. Djodjeva, that Mr. Kinley had a strength
assessment of “at least 5-5” throughout. [Dkt. 14-2 at 23 (citing dkt. 14-10 at 103).] While this
may be harmless error since the doctors’ conclusions are the same, consistent with the Chenery
doctrine, the Commissioner should be careful to only rely on the evidence the ALJ relied upon to
support his conclusions. [Dkt. 19 at 10 (referencing dkt. 14-10 at 52).]
Generally, a treating physician’s opinion regarding the nature and severity of a medical
condition is entitled to controlling weight if it is well supported by medical findings and not
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inconsistent with other substantial evidence in the record. See 20 C.F.R. § 404.1527(c)(2).5 If
the ALJ decides not to give the physician’s opinion controlling weight and articulates a good
reason for such a decision, the ALJ still must decide what weight to give the opinion. Campbell
v. Astrue, 627 F.3d 299, 308 (7th Cir. 2010); 20 C.F.R. § 404.1527(c)(2). In determining the
weight to give the opinion, the ALJ should consider the following factors: 1) the treatment
relationship, including the length, nature, and extent of the relationship and the frequency of
examinations; 2) the supportability and consistency of the opinion with the record as a whole; 3)
whether the physician is a specialist; and 4) any other factors the claimant or others bring to the
attention of the ALJ. 20 C.F.R. § 404.1527(c)(2)-(6).
An ALJ who concludes that the treating physician’s opinion is inconsistent with or
unsupported by other evidence must provide an explanation, “and his failure to do so constitutes
error.” Clifford v. Apfel, 227 F.3d 863, 870 (7th Cir. 2000). The Court is mindful that the
standard of review on a challenge to an ALJ’s findings is highly deferential, but that deference is
not limitless. “[A]n ALJ has the obligation to consider all relevant medical evidence and cannot
simply cherry-pick facts that support a finding of non-disability while ignoring evidence that
points to a disability finding.” Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010) (citation
omitted) (emphasis added). An ALJ need not mention every piece of evidence, but he must build
a logical bridge from the evidence to his conclusion. Id. “It is not enough for the ALJ to address
mere portions of a doctor’s report.” Myles v. Astrue, 582 F.3d 672, 678 (7th Cir. 2009).
The Commissioner admits that in relying on Dr. Fischer instead of on Mr. Kinley’s
treating physicians, the ALJ erroneously characterized a statement from one of those physicians
(Dr. Rhoades) as that of a nurse practitioner. [Dkt. 19 at 11.] The Commissioner contends this
5
Effective March 26, 2012, 20 C.F.R. 404.1527 was amended with paragraphs (d) through (f)
redesignated as paragraphs (c) through (e). See 77 Fed. Reg. 10651, 10656 (Feb. 23, 2012).
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was harmless error because it was clear at the hearing that the ALJ recognized the statement as
that of a doctor, not a nurse practitioner. [Id. (citing dkt. 14-2 at 39-40).] But even if the ALJ
recognized that distinction at the November 1, 2010 hearing, the opinion two months later
mischaracterizing that evidence is still troubling because an opinion from a nurse practitioner is
entitled to less weight since it is not from an acceptable medical source. 20 C.F.R. § 404.1513.
Additionally, Dr. Fischer acknowledged that Mr. Kinley was diagnosed with muscular
dystrophy as a child, [dkt. 14-2 at 37], and Mr. Kinley cites evidence the ALJ ignored supporting
his weakened muscular state, [dkt. 18 at 26-27]. While it is possible that the ALJ could have
reached the same conclusion regarding Mr. Kinley’s functional limitations by acknowledging
contrary evidence in the record and building a logical bridge supporting his rationale, that did not
happen. Given the multiple bases for reversal, the Court will not go into further detail regarding
the ALJ’s reliance on Dr. Fischer’s opinion, but the Court reminds the ALJ that on remand, he
must consider Mr. Kinley’s good days and bad days and determine whether he can hold down a
full-time job given the existence of both. See Bauer v. Astrue, 532 F.3d 606, 609 (7th Cir. 2008)
(“A person who has a chronic disease, whether physical or psychiatric, and is under continuous
treatment for it with heavy drugs, is likely to have better days and worse days; that is true of the
plaintiff in this case. Suppose that half the time she is well enough that she could work, and half
the time she is not. Then she could not hold down a full-time job.”).
V.
CONCLUSION
For the reasons detailed herein, the Court VACATES the ALJ’s decision denying Mr.
Kinley benefits and REMANDS this matter for further proceedings pursuant to 42 U.S.C. §
405(g) (sentence four). Final judgment will issue accordingly.
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02/08/2013
_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana
Distribution via ECF only:
Timothy E. Burns
KELLER & KELLER
timb@2keller.com
Thomas E. Kieper
UNITED STATES ATTORNEY'S OFFICE
tom.kieper@usdoj.gov
Joseph R. Wambach
KELLER & KELLER
joew@2keller.com
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