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Fain v. Colvin

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

March 26, 2014

JACK E. FAIN, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.


PAUL R. CHERRY, Magistrate Judge.

This matter is before the Court on a Complaint [DE 1], filed by Plaintiff Jack Eugene Fain on October 9, 2012, and a Plaintiff's Brief in Support of Reversal of Commissioner's Final Decision [DE 15], filed by Mr. Fain on February 26, 2013. Mr. Fain requests that the July 20, 2011 decision of the Administrative Law Judge denying his claims for disability insurance benefits be reversed or remanded for further proceedings. On June 4, 2013, the Commissioner filed a response, and Mr. Fain filed a reply on July 1, 2013. For the following reasons, the Court denies Mr. Fain's request for remand.


On December 11, 2008, Mr. Fain filed an application for disability insurance benefits, alleging an onset date of November 1, 2008. The application was denied initially on April 20, 2009, and upon reconsideration on July 27, 2009. Mr. Fain timely requested a hearing, which was held on July 5, 2011, before Administrative Law Judge ("ALJ") Sandra R. DiMaggio Wallis. In appearance were Mr. Fain, his attorney Thomas J. Scully III, and vocational expert ("VE") Richard T. Fisher. The ALJ issued a written decision denying benefits on July 20, 2011. She made the following findings:

1. The claimant meets the insured status requirements of the Social Security Security Act through December 31, 2012.
2. The claimant has not engaged in substantial gainful activity since November 1, 2008, the alleged onset date (20 CFR 404.1571 et seq. ).
3. The claimant has the following severe impairments: history of torn hamstring, osteoarthritis and chronic lateral instability of the left foot and ankle with pes cavus deformity and osteoarthritis of the right knee (20 CFR 404.1520(c)).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526).
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to lift/carry up to 50 pounds occasionally and up to 25frequently, stand/walk for six hours in an eight-hour workday, sit for six hours in an eight-hour workday. He can occasionally push/pull with his right lower extremity and must avoid concentrated exposure to wetness, vibration, machinery, and heights.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565).
7. The claimant was born [in 1950] and was 58 years old, which is defined as an individual of advanced age, on the alleged disability onset date (20 CFR 404.1563).
8. The claimant has at least a high school education and is able to communicate in English (20 FR 404.1564).
9. The claimant has acquired work skills from past relevant work (20 CFR 404.1568).
10. Considering the claimant's age, education, work experience, and residual functional capacity, the claimant has acquired work skills from past relevant work that are transferable to other occupations with jobs existing in significant numbers in the national economy (20 CFR 404.1569, 404.1569(a) and 404.1568(d)).
11. The claimant has not been under a disability, as defined in the Social Security Act, from November 1, 2008, through the date of this decision (20 CFR 404.1520(g)).

(AR 22-32).

On August 30, 2012, the Appeals Council denied Mr. Fain's request for review, leaving the ALJ's decision the final decision of the Commissioner. See 20 C.F.R. § 404.981. On October 9, 2012, Mr. Fain filed this civil action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) for review of the Agency's decision.

The parties filed forms of consent to have this case assigned to a United States Magistrate Judge to conduct all further proceedings and to order the entry of a final judgment in this case. Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c) and 42 U.S.C. § 405(g).


A. Medical Background

1. Physical Conditions

On December 27, 2007, Mr. Fain was issued a pair of custom functional foot orthotic devices by podiatrist Marc Bruell, DPM. Dr. Bruell directed Mr. Fain to use supportive shoes.

After injuring himself while trying to stop a rolling truck, Mr. Fain had an x-ray image made of his right leg on November 2, 2008, because of leg pain. While the x-ray showed degenerative osteoarthritic changes involving the knee joint and gave an impression of mild early osteoarthritic changes involving the hip joint, no fracture was seen. On November 4, 2008, Mr. Ritter saw his primary care physician, Mark Ritter, M.D., for follow up of the leg injury. Dr. Ritter gave a diagnosis of a probable hamstring tear, partial. Dr. Ritter ordered an MRI, which showed evidence of a torn hamstring. On November 10, 2008, Dr. Ritter referred Mr. Fain to Thomas H. Kay M.D., an orthopedic surgeon. On November 12, 2008, Dr. Kay diagnosed Mr. Fain with a right hamstring tear, recommended conservative treatment, and prescribed physical therapy. He instructed Mr. Fain to follow up with him in four weeks.

In November 2008, Mr. Fain began physical therapy at the Lake Shore Bone and Joint Institute.

On December 8, 2008, Mr. Fain returned to Dr. Kay for follow up on his hamstring tear. He reported that he was doing better and had no specific complaint. He reported pain that was tolerable but was concerned that he was not yet able to return to work. Dr. Kay prescribed continued physical therapy and directed him to return for follow up in four weeks, anticipating that Mr. Fain would be able to return to work at that time.

On January 5, 2009, Dr. Kay noted that Mr. Fain was doing well, that his overall hamstring strength had improved by at least 50% but was still lacking, and that his balance had improved. Mr. Fain reported no pain. The physical examination revealed tenderness in the high hamstring area and some weakness was noted with hamstring activity. Mr. Fain's gait was awkward and antalgic. Dr. Kay ordered that Mr. Fain continue rehabilitation and directed follow up in six weeks.

On February 20, 2009, Kanayo K. Odeluga, M.D. performed a consultative physical examination of Mr. Fain for the Disability Determination Bureau. Mr. Fain presented with a complaint of torn right hamstring muscle. Mr. Fain reported some discomfort in the upper part of the thigh and described his pain as "stabbing, constant, mild to moderate in intensity and exacerbated by sitting for more than 15 minutes or walking." (AR 384). He reported that he had been doing physical therapy for four months without any significant improvement of his pain. Mr. Fain denied joint pain, swelling, or stiffness. Dr. Odeluga noted Mr. Fain's weight of 220 pounds and height of 6'1". Dr. Odeluga noted that Mr. Fain was obese with no pallor, jaundice, or cyanosis noted. The examination of the spine and upper extremities was normal. In the lower extremities, Dr. Odeluga noted no anatomic deformity, swelling, stiffness, effusion, skin discoloration, or increased or decreased skin temperature involving the hips, knees, and ankles. He noted full range of motion in each joint. Dr. Odeluga found full strength in all major muscle groups of both lower extremities except for the right knee flexors, which he gave a 4/5. Mr. Fain had normal knee and ankle reflexes. He had a mild antalgic gait without any assistive device. Mr. Fain had no degree of difficulty in getting on and off the exam table, tandem walking, walking on toes, walking on heels, or squatting. Dr. Odeluga's impressions were chronic bronchitis, right thigh pain, torn right hamstring muscles, and hypertension.

On February 23, 2009, Mr. Fain returned to Dr. Kay for a recheck. Mr. Fain reported that he was improving but was concerned about his ability to return to work. He also complained of increasing left foot pain due to a chronic foot deformity, for which he had seen Dr. Bruell in the past. On physical examination, Mr. Fain had improved comfort in the right hip and leg range of motion; however, there was still some limited flexion. Mr. Fain was able to bring his fingertips to within six inches of the floor with his knees extended. Dr. Kay placed him on work restrictions with no climbing, prescribed Voltren, recommended that Mr. Fain schedule a follow up with Dr. Bruell to evaluate his left foot, and directed a recheck in a month.

On February 26, 2009, Mr. Fain saw Dr. Bruell, complaining of acute onset of foot pain two months earlier. He reported that he was limping and walking on the outside of his foot and that his symptoms were aggravated by walking. Mr. Fain confirmed that he had orthotics but that he did not use them. Dr. Bruell opined that Mr. Fain had severe metatarsalgia of the left foot, status post clubfoot repair, and possible neuroma of the left forefoot. Studies of the foot ordered by Dr. Bruell revealed moderate subcutaneous edema in the plantar aspect of the forefoot at the level of the third metatarsal head where the marker was placed, club foot deformity, fractures of the first metatarsal neck and fifth metatarsal base, mild marrow in the fourth metatarsal base related to chronic arthritis or chronic stress, and 1.1 cm soft tissue ganglion along the medial plantar proximal aspect of the first cuneiform.

On March 23, 2009, Mr. Fain was examined by Dr. Kay and reported that he was feeling better but still had some weakness. The physical exam revealed comfortable range of motion of the lumbar spine, comfortable range of motion of the hips, unremarkable straight leg raise, and nontender hamstring. The impression was improving comfort and function following hamstring tear. Dr. Kay discontinued physical therapy and encouraged home exercises. Dr. Kay ...

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