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Vincent David Kofron v. Michael J. Astrue

December 14, 2012

VINCENT DAVID KOFRON, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Mark W. Bennett U.S. District Court Judge Northern District OF Iowa

MEMORANDUM OPINION AND ORDER REGARDING REPORT AND RECOMMENDATION

TABLE OF CONTENTS

I. INTRODUCTION ........................................................................... 2

A. Procedural Background ........................................................... 2

B. Factual Background ............................................................... 4

1. Summary of medical evidence ........................................... 4

2. Summary of the ALJ's decision ....................................... 16

II. ANALYSIS ................................................................................. 19

A. Standard of Review ............................................................... 19

B. Kofron's Objections .............................................................. 24

1. Evaluation of medical opinions ........................................ 25

a. Dr. Smith's May 2008 Letter .................................. 25

b. Additional Medical Evidence .................................. 27

2. The ALJ's credibility determination .................................. 29

III. CONCLUSION ............................................................................ 33

I.INTRODUCTION

A.Procedural Background

This case is before me on a Report and Recommendation (docket no. 17) from United States Magistrate Judge Leonard Strand regarding plaintiff Vincent David Kofron's claim for disability insurance benefits ("DIB"), pursuant to Title II of the Social Security Act.

I quote from Judge Strand's Report And Recommendation to introduce the background of this case:

Kofron applied for DIB on April 29, 2008, alleging disability beginning on March 28, 2008, due to sleep apnea, schizoaffective disorder, depression, hypertension, arthritis and high cholesterol. AR 167, 185. The Commissioner denied Kofron's application. AR 103--07. Kofron requested a hearing before an Administrative Law Judge ("ALJ"). AR 108. On September 29, 2009, ALJ Edward Pitts held a hearing in which Kofron and a vocational expert ("VE") testified. AR 46--99. On November 18, 2009, the ALJ issued a decision finding Kofron was not disabled. AR 16-- 24. Kofron sought review by the Appeals Council and submitted additional evidence. AR 36--43. The Appeals Council considered the additional evidence but found that it did not provide a basis for changing the ALJ's decision. AR

2. The Appeals Council therefore denied the request for review and the ALJ's decision became the final decision of the Commissioner. AR 1--4; 20 C.F.R. § 404.981.

Report And Recommendation at 1--2 (docket no. 17). On September 26, 2011, Kofron filed a complaint in this court, seeking review of the ALJ's decision (docket no. 2).

This case was referred to United States Magistrate Judge Strand, pursuant to 28 U.S.C. § 636(b)(1)(B), for the filing of a report and recommended disposition of the case. On March 23, 2012, Kofron filed his brief in support of benefits (docket no. 14). First, Kofron argued that the ALJ and the Appeals Council failed to properly consider the medical opinions of record. Second, Kofron contended that the ALJ failed to properly evaluate Kofron's credibility. Third, Kofron argued that the ALJ relied upon flawed vocational expert testimony.

On May 18, 2012, the Commissioner responded with his brief in resistance (docket no. 15). The Commissioner first argued that the ALJ properly evaluated the credibility of Kofron's subjective complaints. Second, the Commissioner contended that the ALJ properly considered the medical opinions of record and the additional evidence presented only to the Appeals Council does not warrant remand. Third, the Commissioner observed that the ALJ properly relied upon the vocational expert testimony to find that Kofron could perform "other work" that existed in significant numbers in the national economy.

Judge Strand issued a Report And Recommendation on October 25, 2012 (docket no. 17). Judge Strand determined that the ALJ's decision was supported by substantial evidence in the record as a whole and recommended that the ALJ's decision denying benefits be affirmed. Specifically, Judge Strand found that the ALJ properly considered Dr. Smith's opinions and determined that the additional opinions of Dr. Smith and Dr. Wolfgam do not provide a basis for changing the ALJ's decision. However, Judge Strand determined that even if the additional opinions were included, the ALJ's decision would still be supported by substantial evidence. Judge Strand found that the ALJ properly performed the two-step analysis required by 20 C.F.R. § 404.1529, and the ALJ appropriately found that the objective evidence did not support a finding of disability. Finally, Judge Strand found that the hypothetical question posed to the vocational expert constitutes substantial evidence for the ALJ to find that Kofron could perform other work available in the national economy and Kofron was not disabled.

On November 8, 2012, Kofron filed a timely objection (docket no. 18) to Judge Strand's Report And Recommendation. The Commissioner filed his response to Kofron's objection on November 20, 2012 (docket no. 19), in which he addressed Kofron's arguments by incorporating the arguments made in his initial brief. The Commissioner urges me to adopt the Report And Recommendation and affirm the ALJ's finding that Kofron is not disabled.

B.Factual Background

In his Report And Recommendation, Judge Strand made the following findings of fact:

1.Summary of medical evidence

A. Dr. Stacey L. Smith

Dr. Smith has been Kofron's treating psychiatrist since April 2005. AR 290, 358. While most of Dr. Smith's notes are illegible, the record does contain some typed reports. In a report dated May 14, 2007, Dr. Smith noted that Kofron had "the same ongoing sleep problems that he's had for years and years, complicated by his working night shifts." AR 286. She reported that Kofron said he wore his continuous positive airway pressure ("CPAP") machine most of the time and he was taking an occasional catnap at work. Id. Kofron told Dr. Smith that his Seroquel medication was "working fine" and his Xanax medication was keeping him in "the middle," which he described as "fine, and I'm not worrying so much." Id.

Dr. Smith also noted that Kofron reported drinking 24 cans of beer per week, but said he was trying to stay away from it. Id. He had not been to an Alcoholics Anonymous ("AA") meeting lately because his father had been hospitalized. Id. Dr. Smith encouraged him to abstain from alcohol and Kofron stated he was going to attend AA again. AR 286-87.

In her May 14 report, Dr. Smith also stated they discussed Kofron's job aspirations and that he exhibited a "hint of grandiosity." AR 286. For example, he had offered to build her advanced medical devices. As for his mental status, she stated:

His mental status is the same as always. His mood is very pleasantly, consistently slightly elevated without agitation. He is extremely personable, talkative, but with some insight problems. I don't think he realizes how much training would be required for some of the job possibilities he's considering. Not suicidal, homicidal, or psychotic.

Id. She noted Kofron was working evening and weekend hours at a nursing home.

Another typewritten report is available from July 12, 2007. AR 255. In that report, Dr. Smith wrote that Kofron's father had passed away but things were calming down and Kofron seemed at his baseline during the session. Id. Kofron told Dr. Smith he was going to start working an earlier shift at work from 4:00 p.m. to 12:00 a.m. Id. Dr. Smith said he was happy about this and was enjoying his job at the nursing home, especially the people. Id. Kofron stated that he was still looking for additional part-time work and had thought about additional schooling. Id.

In July 2007, Kofron was still having difficulty abstaining from alcohol. Id. He told Dr. Smith he would occasionally drink too much beer when he was feeling frustrated. Dr. Smith stated Kofron "is always a little up and can border on a bit of agitation." Id. She suggested he take an extra Xanax instead of turning to alcohol.

At this appointment, Dr. Smith described Kofron's mental status as "calmer on exam, seems at baseline, pleasant, fun to talk to as usual." Id. He appeared well-groomed and was "personable as ever." Id. He had no new complaints and no prescriptions were issued. Kofron was advised to continue his medications as usual, with the exception of taking extra Xanax if needed, and was again advised to abstain from alcohol. Id. Dr. Smith also discussed diet and exercise with him and encouraged him to switch to lower calorie beverages. Id.

Dr. Smith wrote a letter to the Social Security

Administration on May 27, 2008. AR 290--91. She explained that Kofron is diagnosed with schizoaffective disorder, mixed type, and alcohol abuse. Id. She stated he takes "considerable psychiatric medication yet continues to have some difficulty" and that "[w]hile he drinks a few too many beers . . . this has not caused a significant clinical problem." Id.

As for his ability to work, she wrote that he was working part-time as a security officer but was terminated several months prior. She said he spends many hours on the Internet looking for other possible employment, but that he is a bit grandiose about his capabilities. She did not believe he was capable of following through on his idea to get additional training in order to take a higher scale job. Id. She stated that Kofron would perform "reasonably at a simple job," and that he could not get anyone to hire him despite much effort, writing: "I am convinced his interpersonal manner puts people off. They can tell he is 'not right.'" Id. She further noted that Kofron's mother reported his house is messy and disorganized with papers everywhere. Dr. Smith wrote, "He cannot seem to effectively execute a task from start to finish. He would have great difficulty with any type of a desk job for this reason." Id. Dr. Smith stated that to her knowledge, Kofron had never sustained full-time work successfully over time and opined that this was due to his psychiatric status, not to his underlying character or lack of motivation.

Dr. Smith explained that Kofron's symptoms "wax and wane." Id. She said, "He becomes revved-up (hypomanic) alternating with periods of irritability where he can be loud and difficult with his family." Id. Kofron had been ...


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