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Kingery v. Colvin

United States District Court, N.D. Indiana, Hammond Division

May 19, 2014

HAROLD L. KINGERY, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

OPINION AND ORDER

PAUL R. CHERRY, Magistrate Judge.

This matter is before the Court on a Complaint for Judicial Review [DE 1], filed by Plaintiff Harold L. Kingery on November 29, 2012, and Plaintiff's Brief in Support of Reversal of Commissioner's Final Decision [DE 17], filed on June 20, 2013. Plaintiff challenges the October 28, 2011 decision of the Administrative Law Judge (ALJ) that he is not disabled under the Social Security Act.

I. Background

The Court forgoes a detailed recitation of Plaintiff's medical background. Those looking for a comprehensive discussion of his medical records are directed to the extensive summaries found in the ALJ's decision (AR 15-24) and Plaintiff's opening brief [DE 17]. Rather than reiterating those summaries, the Court gives a brief overview of Plaintiff's history of health issues and how the proceedings have unfolded thus far.

Plaintiff was born on in 1950, has a twelfth-grade education, and was fifty-eight years old on the date he alleges his disability began. For many years, he worked as a millwright in a steel mill. Later, he worked as a bar manager, loan officer, toll-road worker, trailer tanker driver, and home inspector.[1]

Plaintiff has suffered from a number of medical issues, including hypertension, hyperlipidemia, enlarged prostate, obesity, high blood pressure, arteriosclerosis, and breathing issues such as chronic obstructive pulmonary disease (COPD), emphysema, bronchitis, coughing spells, and sleep apnea. He also has suffered from knee pain and edema in his legs. He has chronic back pain, severe osteoarthritis in his thoracic spine, bony spurs in his lumbar spine, foraminal stenosis, and other degenerative changes.

Plaintiff applied for disability insurance benefits (DIB) for a period beginning April 18, 2009. This claim was denied on November 9, 2010, and upon reconsideration on January 13, 2011. After that, Plaintiff filed a written request for a hearing on February 4, 2011. The Social Security Administration granted this request, and a hearing was held on October 26, 2011, before ALJ David Skidmore.

At that hearing, Plaintiff testified that he had trouble sleeping at night because of his coughing spells-he claimed the lack of sleep made it very hard for him to stay awake at work. He explained that he had suffered from severe coughing spells for years and that his symptoms had become progressively worse. He further testified that he was unable to walk far or lift much because of his leg pain and swelling: these affected his ability to sit and stand (he apparently alternated between sitting and standing for most of the day). He testified that doctors had told him to elevate his legs whenever they swell and that he kept his feet up all the time. He also testified that he had severe arthritis in his thoracic spine and had pain that ran down his legs and back, making him unable to wear regular shoes. (He testified that he normally does not wear shoes at all.)

He claimed that this pain forced him to quit his work at the toll road after about six weeks because he could not stand long enough. He also testified that his job as a bar manager at the American Legion (he is a veteran) was only possible because his employer accommodated him, putting a futon in his office for him to take naps on and allowing him to work at a reduced pace. He nevertheless testified that he would work up to seven days and fifty hours per week.

Vocational Expert (VE) Randall Harding testified that no jobs would be available for those who had to elevate their legs sixteen inches for two to three hours per day or for those who fell asleep two to three times per day for five to ten minutes per nap. He also testified that if one could not stand for six hours out of an eight-hour work day, all jobs Plaintiff could otherwise perform would be eliminated.

The ALJ issued an unfavorable decision on October 28, 2011, making the following findings as part of the required five-step evaluation. At step one, he found that Plaintiff had not engaged in substantial gainful activity since the alleged onset date of April 18, 2009.[2] At step two, he found that, though Plaintiff suffered from a number of medical problems, he was afflicted with only one severe impairment: chronic obstructive pulmonary disease. The ALJ found at step three that Plaintiff did not suffer from an impairment (or combination of impairments) that meets or medically equals the severity of one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appx. 1. The ALJ next determined that Plaintiff had the residual functional capacity (RFC) to lift and carry up to fifty pounds occasionally and twenty-five pounds frequently, stand and/or walk for about six hours in an eight-hour work day, and sit for at least six hours in an eight-hour workday. The ALJ also found that Plaintiff could have no more than occasional exposure to cold, heat, or environmental irritants such as fumes, odors, dust, or gases.

Additionally, in crafting the RFC, the ALJ found Plaintiff only partially credible regarding his testimony about his breathing problems, pointing to, among other things, Plaintiff's sub-maximal effort in a spirometry exam and his refusal to seek treatment for his one-to-two-pack-per-day smoking habit. The ALJ found Plaintiff's testimony about his non-pulmonary symptoms not credible because many of his alleged symptoms were never mentioned in any of his medical records and because he continued to golf and worked lengthy hours at the American Legion, suggesting greater stamina than Plaintiff alleged.

In light of this, the ALJ found at step four that Plaintiff was capable of doing his past work as a home inspector and toll-road worker. Alternatively, the ALJ found that Plaintiff could work as a machine feeder (500 jobs in Indiana), machine packager (800 jobs in Indiana), or package sealer machine operator (400 jobs in Indiana). The ALJ accordingly found Plaintiff not disabled.

Plaintiff then sought review of the ALJ's decision with the Appeals Council, which denied his request, making the ALJ's denial the Commissioner's final decision. 20 C.F.R. §§ 404.955; 404.981. Plaintiff then filed this appeal on November 29, 2012, seeking judicial review.

The parties filed forms of consent to have this case assigned to a United States Magistrate Judge to conduct all further proceedings and to order the entry of a final judgment in this case. Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c) and 42 U.S.C. § 405(g).

II. Standard of Review

The Social Security Act authorizes judicial review of the final decision of the agency and indicates that the Commissioner's factual findings must be accepted as conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Thus, a court reviewing the findings of an ALJ will reverse only if the findings are not supported by substantial evidence or if the ALJ has applied an erroneous legal standard. See Briscoe v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005). Substantial evidence consists of "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Schmidt v. Barnhart, 395 F.3d 737, 744 (7th Cir. 2005) (quoting Gudgel v. Barnhart, 345 F.3d 467, 470 (7th Cir. 2003)).

A court reviews the entire administrative record but does not reconsider facts, re-weigh the evidence, resolve conflicts in evidence, decide questions of credibility, or substitute its judgment for that of the ALJ. See Boiles v. Barnhart, 395 F.3d 421, 425 (7th Cir. 2005); Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000); Butera v. Apfel, 173 F.3d 1049, 1055 (7th Cir. 1999). Thus, the question upon judicial review of an ALJ's finding that a claimant is not disabled within the meaning of the Social Security Act is not whether the claimant is, in fact, disabled, but whether the ALJ "uses the correct legal standards and the decision is supported by substantial evidence." Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir. 2013) (citing O'Connor-Spinner v. Astrue, 627 F.3d 614, 618 (7th Cir. 2010); Prochaska v. Barnhart, 454 F.3d 731, 734-35 (7th Cir. 2006); Barnett v. Barnhart, 381 F.3d 664, 668 (7th Cir. 2004)). "[I]f the Commissioner commits an error of law, " the Court may reverse the decision "without regard to the volume of evidence in support of the factual findings." White v. Apfel, 167 F.3d 369, 373 (7th Cir. 1999) (citing Binion v. Chater, 108 F.3d 780, 782 (7th Cir. 1997)).

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. See Scott v. Barnhart, 297 F.3d 589, 595 (7th Cir. 2002); Diaz v. Chater, 55 F.3d 300, 307 (7th Cir. 1995); Green v. Shalala, 51 F.3d 96, 101 (7th Cir. 1995). An ALJ must "build an accurate and logical bridge from the evidence to [the] conclusion' so that, as a reviewing court, we may assess the validity of the agency's final decision and afford [a claimant] meaningful review." Giles v. Astrue, 483 F.3d 483, 487 (7th Cir. 2007) (quoting Scott, 297 F.3d at 595)); see also O'Connor-Spinner, 627 F.3d at 618 ("An ALJ need not specifically address every piece of evidence, but must provide a logical bridge' between the evidence and his conclusions."); Zurawski v. Halter, 245 F.3d 881, 889 (7th Cir. 2001) ("[T]he ALJ's analysis must provide some glimpse into the reasoning behind [the] decision to deny benefits.").

III. Disability Standard

To be eligible for disability benefits, a claimant must establish that he suffers from a "disability" as defined by the Social Security Act and regulations. The Act defines "disability" as an inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). To be found disabled, the claimant's impairment must not only prevent him from doing his previous work, but considering his age, education, and work experience, it must also prevent him from engaging in any ...


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