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Roy Kogstad v. Michael J. Astrue

May 17, 2012


The opinion of the court was delivered by: Matthew F. Kennelly , District Judge:


Roy Kogstad has sued Michael J. Astrue, Commissioner of Social Security, seeking review of a decision denying Kogstad disability insurance benefits. Both parties have moved for summary judgment. For the reasons stated below, the Court grants Kogstad's motion and denies the Commissioner's.


Kogstad suffers from diabetes and coronary artery disease and claims that these conditions have prevented him from working since January 1, 2004. Specifically, Kogstad states that he cannot work full-time as an accountant and tax preparer, his profession since graduating from college, because the stress of the job exacerbates his diabetes and coronary artery disease. Before 2004, he worked full-time as a self-employed accountant for several years. In January 2004 and again in August 2004, doctors performed cardiac catheterization on Kogstad and placed stents in his coronary arteries to treat his coronary artery disease. During this time, Kogstad's diabetes also appeared to be poorly controlled. Dr. Lawrence Dumont, one of Kogstad's physicians, noted in May 2004 that his blood glucose levels could vary widely each day. R. at 315.

In 2004, as a consequence of Kogstad's health problems and, he claims, on the advice of his doctors, he reduced his work schedule. Kogstad continues to work as an accountant but now works from home an average of two hours each day rather than full time in an office. Even with this reduced schedule, Kogstad says, he needs to take frequent breaks to check and manage his blood glucose levels and is often fatigued or has to rest after working for only an hour or two.

When Dr. Dumont saw Kogstad again in October 2005, he noted that Kogstad's glucose levels still varied a lot within each day. Id. at 299. In November 2007 and February 2008, however, Dr. Greg Kirschner, another of Kogstad's doctors, wrote that Kogstad's diabetes was very well controlled. Id. at 295, 488. Kogstad did not have significant problems with his coronary artery disease between 2004 and the time that he filed a claim for disability benefits in October 2007. Kogstad underwent a twenty-four-hour electrocardiogram (EKG) in November 2006. Id. at 281. The results were normal. In March 2008, Kogstad underwent a cardiac stress test, and the results were likewise normal. Id. at 423.

Kogstad filed a claim for disability benefits on October 25, 2007. The Social Security Administrationdenied his claim in March 2008 and denied his request for reconsideration in August 2008. Kogstad sought a hearing before an administrative law judge (ALJ).

The hearing occurred on June 4, 2009. Kogstad testified and described the limitations his conditions placed on him. He stated that fatigue and the stress associated with the job made it impossible for him to work full-time as an accountant.

Id. at 29. Even working from home a couple of hours a day could tire him out if he had to talk on the phone with the IRS or a client. Id. Many days, he took an hour-long nap in the afternoon to control his stress. Id. at 31. Kogstad thought that he might be able to do less stressful work, such as a clerk at a retail store, but noted that he would need frequent breaks to check his glucose levels and to lie down and rest to control his glucose levels. Id. at 30--31. Kogstad agreed that his diabetes had been well controlled on average during the past several years but stated that during each day he still experienced unhealthy highs and lows in his blood sugar. Id. at 31--32. He stated that he had not been treated for cardiac problems since 2004 but that he did have occasional chest pain associated with stress. Id. at 32.

Kogstad also testified about his other daily activities. He stated that he exercised two or three times per week, usually for about twenty-five minutes. Id. at 33. The ALJ noted that Kogstad's doctors had told him to exercise five or six times per week. Kogstad said that he did not exercise that much because he did not have enough time and he "just got lazy." Id. Kogstad testified that he lived with his parents and helped out by occasionally driving his mother and brother to various locations. Id. at 28, 42--43. He did his own laundry and sometimes cooked or washed the dishes. Id. at 39. He served as a trustee of his village between 2005 and 2009, attending regular meetings. Id. at 41. Kogstad stated, however, that during his service as a trustee he had to take a nine month leave of absence because he could not handle the stress of the job. Id.

Susan Entenberg, an impartial vocational expert, also testified. In response to questions by the ALJ, she stated that there were jobs that were either sedentary or required light exertion and did not involve high stress like Kogstad's previous work as an accountant. Id. at 46--47. These jobs included cashier, light housekeeping, food preparation, assembler, information clerk, and inspector, all of which were available in the Chicago metropolitan area in large numbers. Id. Entenberg also testified, however, that workers in these sorts of jobs typically are not allowed to take unscheduled or unpredictable breaks during the work shift but instead are required to remain at a work station and generally cannot be absent more than one day per month even for medical reasons. Id. at 47--48.

The ALJ issued her decision on June 24, 2009. She determined that Kogstad could perform light work, with limited use of ladders, ropes, and scaffolds and no concentrated exposure to pulmonary irritants. Id. at 16. She also determined that Kogstad could not work in high stress jobs. Id. The ALJ did not find credible Kogstad's claims of severe impairment due to diabetes and coronary artery disease, because she thought the impairment he described was inconsistent with his daily activities and his ability to work at least a few hours a day in his high-stress accounting job. Id. at 16--17. She also found it noteworthy that Kogstad had told Dr. Kirschner in May 2009 that he was not feeling tired or fatigued, which she found cast doubt on Kogstad's testimony at the hearing that he was frequently tired and needed to rest every day. Id. at 599. The ALJ also found that Kogstad's diabetes and coronary artery disease were well controlled and had not caused him major problems since 2004. Id. at 17--18. She acknowledged that Dr. Kirschner reported that Kogstad required frequent unscheduled breaks during the day and would have to be absent from work more than four days a month for medical reasons. Id. at 18, 613, 615. The ALJ did not credit this report, however, because she believed it conflicted with Dr. Kirschner's reports that Kogstad's diabetes was well controlled. Id. at 18.

The ALJ found that because he could do light work that involved only low or moderate stress, Kogstad could perform "jobs that exist in significant numbers in the national economy" even though he could not perform his past job as an accountant because it involved high stress. Id. at 18--19. The ALJ based this determination upon vocational expert Entenberg's testimony. Because the ALJ found there were jobs that Kogstad could perform, she ruled that he was not disabled between January 1, 2004 and the date of her decision.

Kogstad contends that after the ALJ found that he was not disabled, he attempted to work more hours in his home accounting business. Kogstad contends that this resulted in another hospitalization. In September 2009, an ambulance took Kogstad to the hospital after he experienced abdominal pain. Pl. Ex. 1 at 9. The next day, his pain was diagnosed as a urinary tract stone, which he had apparently passed. Id. at 15. Kogstad's EKG was also abnormal, however, which led to him ...

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