United States District Court, C.D. Illinois, Rock Island Division
ORDER AND OPINION
JONATHAN E. HAWLEY, U.S. MAGISTRATE JUDGE.
before the Court is the Plaintiff Shaun Kostka’s Motion
for Summary Judgment (Doc. 11) and the Commissioner’s
Motion for Summary Affirmance (Doc. 15). For the reasons
stated herein, the Court GRANTS the Plaintiff’s Motion
for Summary Judgment, DENIES the Commissioner’s Motion
for Summary Affirmance, and REMANDS this matter for
proceedings consistent with this opinion.
previously filed applications for disability insurance
benefits (DIB) and supplemental security income (SSI) on
December 21, 2009 alleging disability beginning on March 15,
2009. His claims were denied on May 17, 2010 and he did not
appeal that denial.
on April 15, 2013, Kostka filed an application for SSI and
one for DIB on April 22, 2013 again alleging disability
beginning on March 15, 2009. His claims were denied initially
on July 24, 2013 and were denied upon reconsideration on
March 27, 2014. On April 22, 2014, Kostka filed a request for
hearing concerning his applications for DIB and SSI. A
hearing was held before the Honorable Susan F. Zapf (ALJ) on
June 1, 2015. At the hearing, Kostka was represented by
counsel and a Vocational Expert (VE) testified. Following the
hearing, Kostka’s claim was denied on July 30, 2015.
His request for review by the Appeals Council was denied on
December 16, 2016, making the ALJ’s Decision the final
decision of the Commissioner. Kostka filed the instant civil
action seeking review of the ALJ’s Decision on January
time he again applied for benefits on April 15, 2013, Kostka
was 39 years old living in Moline, Illinois. On his Form
SSA-3368, Kostka listed all the physical or mental conditions
that limited his ability to work as follows: back injury;
bipolar disorder; PTSD; depression; and anxiety. AR 314.
hearing, Kostka testified that he lived in a mobile home with
his minor daughter. He drove six to seven miles on average
during the week. He obtained his GED and last worked in March
2009. In the past, he worked as a cashier, industrial
maintenance electrician, and a maintenance sanitation
foreman. Kostka testified that he believed he could not work
at present because he was in pain and was paranoid which felt
like claustrophobia and like a panic attack. He also
testified that he was seeing a psychiatrist at the Robert
Young Center for years. He testified that he took his
medications as prescribed, including some for pain. He
experienced dizziness, shaky hands, sleepiness, and
“lots of other things” as side effects from his
medications. AR 66. His doctor changed his medications in an
effort to reduce Kostka’s side effects. He was taken
off Ativan because he drank alcohol while on it. He drank
alcohol and had five beers the night before the hearing. He
said he drank alcohol for pain relief but did not have issues
when attempting to stop drinking. He described where his back
pain occurred and what he did to attempt to make it better
and what he did that made it worse.
also testified that his anxiety interfered with his ability
“to do lots of stuff.” AR 70. He stated that he
could walk with a basket at the grocery store until he had a
panic/anxiety attack. He spent approximately one hour when he
did go to the grocery store. He previously went to rehab
years before when he started seeing a psychiatrist. He did
not believe his drinking interfered with his social ability.
He socialized with a neighbor and never socialized with more
than two people at a time. His girlfriend came over to his
house a couple of times a week. He otherwise had no social
activities. He explained that with so many people around him,
he could not handle it; he felt “boxed in.” AR
75. It did not matter whether he knew those around him or
not. Kostka further testified that he could not really leave
his house when he wanted as he had anxiety attacks. He missed
his daughter’s doctor appointments because of the
anxiety he experienced when he left his house. As of the
hearing date, Kostka had been hospitalized because of his
anxiety or depression just once before.
questioning by his attorney, Kostka described sensations in
his chest as tightness and feeling like he was claustrophobic
as well as a racing heart and a manic feeling. Kostka
explained that agoraphobia affected him so that he could not
leave his house. He felt like he was stuck in a box. He felt
fearful that something might happen and he also had a
physical reaction to leaving his home. Kostka testified that
he believed structuring his life so that he did not have to
go out much helped him control his symptoms. He spoke with
his doctors about those feelings and their feedback was to
change medications and recommend he go see a counselor. When
he went to the grocery store, he would stay in an empty aisle
and when he went to the doctor’s, office he would sit
as far away from others as he could. He had problems getting
along with other people in his life.
also testified regarding his memory. He stated that because
of his memory problems, he was really disorganized. He would
not remember where he set things down around his house such
as glasses, papers, and small things. He had trouble
completing tasks. He said he tried “lots of
things” to help him complete the things he started but
so far there was nothing he could do to control or lessen his
issues with completing things. As for his sleep, Kostka
testified that he slept no more than two and a half hours
straight during the night and otherwise was up and down all
night long for pain, to go to the bathroom, or because he
just could not sleep. He testified about the limited amount
of chores he did around his house.
next testified further about his physical ailments. His
attorney then returned to Kostka’s work history and
asked him what kept him from working like he used to work.
Kostka explained that it was because of his anxiety, lack of
control, lack of not wanting to go out of the house, and
“just the stuff that is in my head, I guess.” AR
84. He said he tried not drinking on his prescribed
medications and that it did not make any difference. When
asked what would have to change for him so that he could work
like he once did, Kostka answered that the pain in his back,
anxiety issues, and getting along with people were things
that would have to improve.
proceeded to question the VE, Alfred Walker. The VE testified
that he did not discuss his own testimony with the ALJ or
Kostka prior to the hearing. He testified that he read the
file regarding Kostka’s work history and listened to
Kostka’s testimony. The VE did have questions regarding
Kostka’s past work history which were addressed and
resulted in the VE amending the past work summary to replace
building maintenance worker with maintenance electrician. The
ALJ then asked the VE:
Q. Okay, okay. I would like you to consider a hypothetical
individual with the same age, education, and having the same
past work as this claimant, limited to a range of medium
work, with occasional stooping, crouching, crawling, and
kneeling. Occasional ladders, ropes, and scaffolds,
occasional interaction with coworkers and supervisors, no
interaction with the public. Is there any past work he could
A. I would say no. There is no past work.
AR 88-89. The VE testified that there was other work Kostka
could perform including medium strength work of counter
supply worker and industrial cleaner and light strength work
of laundry worker and housekeeper. At the sedentary level,
the VE identified the jobs of ticket checker and document
preparer. The VE also provided the number of jobs for each of
those positions both regionally and nationally. The ALJ then
asked the VE:
Q. With these sedentary jobs, if he had to stand at his
workplace for up to two minutes after sitting 45 minutes,
could he do those jobs?
A. Yes, your honor.
Q. And are your results consisting [sic] with the Dictionary
of Occupational Titles?
A. Yes, your honor.
AR 89-90. The VE proceeded to testify regarding the specific
source for his job numbers (the Occupational Employment
Kostka’s attorney questioned the VE:
Q. All right. So, we have got one hypothetical that has been
asked, and you, Mr. Walker, came up with a number of medium,
light, and sedentary jobs that could be done, even though
past work would be eliminated.
A. That’s -- yes, sir.
Q. Okay. Would it make a difference in your response in that
one hypothetical that you were asked if there had been
included problems with either concentration or persistence or
pace in the work setting?
A. There could be problems, yes, sir.
Q. Okay. What sort of problems would give rise to a change in
answer? What level of problems with concentration or
persistence or pace, however you would express it?
A. Anything that results in off task behavior or reduced