United States District Court, Southern District of Indiana, Indianapolis Division
GREGORY A. POTTORFF, Plaintiff,
CAROLYN W. COLVIN Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION ON PLAINTIFF’S BRIEF IN SUPPORT OF APPEAL
TIM A. BAKER UNITED STATES MAGISTRATE JUDGE.
The parties appeared by counsel July 31, 2014, for an oral argument on Plaintiff’s brief in support of appeal. Set forth below is the Court’s oral ruling from the bench following that argument. This ruling recommends that the decision of the Commissioner be affirmed, and that Plaintiff’s brief in support of appeal be denied.
THE COURT: I will now issue my recommended decision in the case of Gregory Pottorff. As you will recall, I held oral argument on that case on July 2nd, 2014, and then ordered supplemental briefing, which was completed on July 12th, 2014.
This case involves plaintiff Gregory Pottorff and his April 29, 2010, application for Social Security.
The administrative law judge held a hearing on this application on September 15th, 2011, and on January 31st, 2012, denied plaintiff's application. The Appeals Council affirmed the ALJ's denial decision. This case is before the Court on an appeal of that decision.
Factually, plaintiff was injured on the job on October 30th, 2008. Plaintiff worked limited duty thereafter but has been unemployed since May 4th, 2009. Plaintiff's primary attending physician for his back issues has been Dr. Steven M. Ritter, an orthopedic surgeon at Methodist Sports Medicine in Indianapolis, where he specializes in the spine and worker's compensation.
Dr. Ritter treated plaintiff conservatively, including with injections, but ultimately performed three cervical surgeries on the plaintiff, on June 17, 2009, March 31st, 2010, and December 6th, 2011.
This case presents four issues for appeal.
No. 1, does substantial evidence support the ALJ's finding that plaintiff was not disabled because plaintiff did not meet or equal listing 1.04A.
No. 2, did the ALJ err in failing to summon a medical advisor?
No. 3, was the ALJ's credibility finding patently erroneous?
And No. 4, does substantial evidence support the ALJ's Step 5 determination that plaintiff was not disabled because plaintiff could perform some jobs in the national economy?
The linchpin of plaintiff's argument is that the ALJ completely ignored plaintiff's December 16, 2011, third surgery by Dr. Ritter. This seemingly would be a major oversight on the ALJ's part and would require a remand. At oral argument, however, defendant noted for the first time that plaintiff's December 16, 2011, surgery by Dr. Ritter postdated the ALJ's January 31st, 2012, decision. Thus, the ALJ could not have considered this surgery because it had not yet occurred; and the ALJ's failure to mention or incorporate the medical evidence cannot provide a basis to challenge the ALJ's decision.
Just to clarify, the hearing by the ALJ was on September 15, 2011. The surgery was on December 16, 2011; and the ALJ's decision was on January 31st, 2012. So the ...