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Kostka v. Commissioner of Social Security

United States District Court, C.D. Illinois, Rock Island Division

December 7, 2017

SHAUN KOSTKA, Plaintiff,



         Now 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).[1] 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.[2]


         Kostka 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.

         Then, 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 31, 2017.


         At the 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.

         At the 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.

         Kostka 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.

         Upon 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.

         Kostka 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.

         Kostka 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.

         The ALJ 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 perform?
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 Survey).

         Next, 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 productivity.
Q. Okay.
A. ...

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