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Barrett v. Colvin

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

March 11, 2014

CORY S. BARRETT, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


RUDY LOZANO, District Judge.

This matter is before the Court for review of the Commissioner of Social Security's decision denying Disability Insurance Benefits and Supplemental Security Income to Plaintiff, Cory S. Barrett. For the reasons set forth below, the Commissioner of Social Security's final decision is REVERSED and this case is REMANDED to the Social Security Administration for further proceedings consistent with this opinion pursuant to sentence four of 42 U.S.C. § 405(g).


On May 24, 2010, claimant, Cory S. Barrett ("Barrett" or "claimant") applied for Social Security Disability Insurance Benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. § 401 et seq. On May 25, 2010, Barrett applied for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. § 1381 et seq.

Barrett alleged that his disability began on February 5, 2010. The Social Security Administration denied his initial application and also denied his claims on reconsideration. Barrett appeared on December 2, 2011, with counsel, at a hearing before Administrative Law Judge William E. Sampson ("ALJ Sampson" or "ALJ"). The ALJ heard testimony from Barrett as well as from an impartial Vocational Expert ("VE"), Leonard M. Fisher. On December 12, 2011, ALJ Sampson denied Barrett's DIB and SSI claims, finding Barrett not disabled as defined by the Social Security Act. (Tr. 10-22).

Barrett requested that the Appeals Council review the ALJ's decision and the request was denied. Accordingly, the ALJ's decision became the Commissioner's final decision. See 20 C.F.R. § 422.210(a) (2005). Barrett has initiated the instant action for judicial review of the Commissioner's final decision pursuant to 42 U.S.C. § 405(g) and 1383(c).


Barrett was born August 22, 1971. (Tr. 20). He was 40 years old when the ALJ rendered his decision, and 38 years old at the time of onset. (Tr. 16). Barrett graduated from high school and had past relevant work as a cable installer, a satellite installer, and a dispatcher. (Tr. 16, 34, 165). Barrett alleges the following impairments: back injury, symptoms associated with spinal fusion surgery, anxiety, panic attacks, and depression. (Tr. 164).

Barrett underwent back surgery in 2000. (Tr. 35, 238). In late 2009 or early 2010, Barrett began experiencing pain in his back again. (Tr. 237-39, 356, 448). On January 8, 2010, Dr. John Gorup of the Indiana Spine Center examined Barrett. (Tr. 350-51). Barrett reported that he had been having low back and leg pain for 6 weeks, that the pain was constant, and that the pain was worse when he stands, bends, lifts or walks. (Tr. 350). He rated his pain at 8 out of 10. (Tr. 350). Examination showed nerve tension signs and diminished reflexes in his lower extremities. (Tr. 351). Dr. Gorup ordered an MRI and diagnosed recurrent L5-S1 disc herniation, acquired lumbar spinal stenosis, lumbar ridiculopathy, and degenerative disc disease of the lumbar spine. (Tr. 266, 268, 350-51).

On January 12, 2010, Dr. Gorup recommended Barrett undergo a posterior lumbar interbody fusion procedures at L5-S1 due to severe symptoms and findings. (Tr. 349). Barrett underwent the surgery on February 8, 2010. (Tr. 264). When he was released from the hospital on February 11, 2010, his pain was well controlled on oral pain medication. (Tr. 352).

Following the surgery, Barrett continued to feel moderate to severe back pain, often radiating down his left leg and numbing his left foot. (Tr. 358-59). Dr. Robert Bigler performed a series of three steroid injections in May, June, and July of 2010 to relieve pain and determine its source. (Tr. 280, 297, 313). In May of 2010, Barrett reported no improvement in his pain with the back surgery and that his pain was actually worse. In June, Barrett reported a moderate to severe amount of discomfort and pain. (Tr. 346). On July 22, 2010, Barrett saw Dr. Gorup and reported complete pain relief for two days following a spinal injection. (Tr. 344). Dr. Gorup planned to see Barrett in two months, and if x-rays revealed that his fusion was well consolidated, he would proceed with removal of Barrett's hardware. (Tr. 344).

In August of 2010, Barrett described his pain to Dr. Bigler as constant, sharp, shooting, stabbing and aching. (Tr. 419). He indicated that the pain was relieved by lying down and pain medication. (Tr. 419). He further indicated that the pain has continued since his back surgery in February of 2010, and he rated the pain as a 10 out of 10. (Tr. 419). In September of 2010, Barrett again described his pain as constant, shooting, stabbing and aching, and rated it as 8 out of 10. (Tr. 415). He indicated that the pain is exacerbated by sitting, standing, walking, bending, or lying flat. (Tr. 415). On September 30, 2010, Dr. Gorup released Barrett from his care and indicated he was solidly fused, but he noted that Barrett reported ongoing numbness in his right leg. (Tr. 381).

On October 09, 2010, Barrett underwent a medical examination with the State Disability Determination Services medical consultative examiner, Luella Bangura, M.D. (Tr. 368-70). Upon examination, Barrett's gait was antalgic and he had a normal station. (Tr. 370). He was able to walk on his toes with difficulty but unable to walk on his heels. ( Id. ). He could squat, but he could not bend over more than 30 percent. ( Id. ). There was tenderness to palpation of the spine, but no evidence of inflammation, effusion, swelling, muscle weakness, or atrophy. ( Id. ). Dr. Bangura found that the straight-leg raising sign was positive on the right side. ( Id. ).

On November 9, 2010, Dr. J. Sands, an agency physician, completed a physical residual functional capacity assessment form for Barrett. (Tr. 405-12). Dr. Sands believed that the medical records show that Barrett could lift 20 pounds occasionally and 10 pounds frequently, could stand and/or walk about 6 hours in an 8hour workday, could sit about 6 hours in an 8-hour workday, and was not limited in his ability to push and/or pull. (Tr. 406). He further indicated that Barrett could only occasionally climb, balance, stoop, kneel, crouch or crawl. (Tr. 407).

Barrett saw Dr. Bigler consistently throughout 2011. On March 8, 2011, when Barrett saw Dr. Bigler, he rated his pain as a 7 out of 10. (Tr. 464-66). When Barrett saw Dr. Bigler on April 12, 2011, he rated his pain as 8 out of 10 and described the pain as constant, sharp, nagging, shooting, piercing, stabbing, aching and dull. (Tr. 460-62). He felt that Flexeril was not helping him and that his pain was getting worse overall. (Tr. 460). The pain was worst in his lower back, but extended into his shoulders, left hand and fingers, thoracic spine, hips, buttocks, posterior and lateral thigh, lower leg, calf, and foot. (Tr. 460).

When Barrett saw Dr. Bigler on May 10, 2011, he reported pain as constant, sharp, nagging, shooting, piercing, stabbing, aching and dull, and he rated his pain at 6 out of 10. (Tr. 456-58). Records indicated he was using a transcutaneous electrical nerve stimulation ("TENS") unit for pain management at the time and that it was helping. (Tr. 456). Dr. Bigler indicated Barrett should follow up in four months, but Barrett saw Dr. Bigler just a month later, on June 06, 2011. (Tr. 458, 452-54). At this visit, Barrett reported constant, sharp, nagging, shooting, piercing, stabbing and aching pain that he rated as an 8 out of 10. (Tr. 452).Barrett saw Dr. Bigler again on September 21, 2011, and described his pain as sharp, dull, shooting, stabbing, nagging, piercing, and aching. (Tr. 448-50). He further indicated that the pain radiated to his buttock, thigh, leg and foot, and that the pain was worsened by standing, walking, bending and lying flat. (Tr. 448).The pain was relieved by medication, sitting, standing and lying down, and Barrett got good relief from pain medication. (Tr. 448).On November 22, 2011, Barrett saw Dr. Bigler yet again. (Tr. 519-21). He rated his pain at 7 out of 10 and described his pain as constant, sharp, nagging, shooting, piercing, stabbing and dull. (Tr. 519). Dr. Bigler prescribed Cymbalta for Barrett. (Tr. 521).

With regards to Barrett's mental impairments, on January 1, 2010, Dr. Aldo Buonanno performed a mental status examination on Barrett. (Tr. 364-66). Dr. Buonanno diagnosed panic disorder, depressive disorder, and alcohol dependence in remission, and assigned a GAF of 57.[1] (Tr. 365-66). Dr. Buonanno noted that "Barrett's problems seem to be more physical than anything else" and "[h]e is still in pain and has no medical insurance and is currently on no medications." (Tr. 366).

Notes from American Health Network dated October 14, 2010, indicated that Barrett continued to suffer from depression and anxiety and that his back surgery was considered a failed surgery. (Tr. 372). He was not taking his medications because he could not afford them. (Tr. 372).

On October 27, 2010, Dr. F. Kladder, Ph.D., completed a psychiatric review technique form in which he indicated that the medical evidence demonstrated Barrett suffered from both depression and panic disorders, but that those disorders were not so severe that they met the listings. (Tr. 391-404). He further found that the medical records suggested that Barrett suffered only mild restrictions of activities of daily living, only mild difficulties in maintaining social functioning, and only mild difficulties in maintaining concentration, persistence or pace. (Tr. 401). Dr. Kladder indicated that Barrett's psychiatric impairments did not appear severe. (Tr. 403). Dr. Kladder's assessment was affirmed by Dr. B. Randal Horton on October 27, 2010. (Tr. 443).

In October of 2011, Barrett sought outpatient treatment at Wabash Valley Alliance, Inc. (Tr. 511-17). Following assessment, he was diagnosed with Panic Disorder without agoraphobia, major depression, recurrent, moderate, full remission, and alcohol dependence, full remission. (Tr. 517). His GAF was assessed at 45.[2] (Tr. 511). A treatment plan was developed for Barrett and included as a goal that Barrett would "report 1 panic attack or less each week (instead of several times a week)." (Tr. 513).

At the hearing, Barrett testified that, following surgery in February of 2010, he has had constant pain, often shooting down his left leg, and numbness in his left foot. (Tr. 36). He stated that he takes OxyContin and Oxycodone for pain management, and it relieves a portion of the pain; without it he would not be able to function. (Tr. 37). Barrett estimated he could stand or walk for a maximum of 15 minutes at a time. (Tr. 37). He also estimated that he could sit for ten to fifteen minutes before he needs to shift around to relieve the pain. (Tr. 37-38). He can only sleep for about two hours at a time and, as a result, naps during the day. (Tr. 38).

Barrett lives with his parents and has four children that he sees one night a week and every other weekend. (Tr. 39, 173). Barrett's parents take care of the shopping, cooking, cleaning, and other household chores. (Tr. 38-38). Barrett indicated in a functional report that he can only fix simple meals, such as cereal or sandwiches, because standing to cook exacerbates his pain. (Tr. 174). He does not usually drive and when he does he states he can only drive short distances. (Tr. 175). ...

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