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Kinder v. Colvin

United States District Court, N.D. Indiana, Fort Wayne Division

August 15, 2014

DAVID A. KINDER, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


ROGER B. COSBEY, Magistrate Judge.

Plaintiff David Kinder appeals to the district court from a final decision of the Commissioner of Social Security ("Commissioner") denying his application under the Social Security Act (the "Act") for a period of disability and Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI").[1] ( See Docket # 1.) For the following reasons, the Commissioner's decision will be AFFIRMED.


Kinder applied for SSI and DIB in May 2008, alleging that he became disabled as of March 21, 2008. (Tr. 128-40.) The Commissioner denied Kinder's application initially and upon reconsideration, and Kinder requested an administrative hearing. (Tr. 68-69, 78-79.) On October 26, 2010, a hearing was conducted by Administrative Law Judge ("ALJ") Angela Miranda, at which Kinder, who was represented by counsel, and a vocational expert ("VE") testified. (Tr. 40-67.) On October 28, 2011, the ALJ rendered an unfavorable decision to Kinder, concluding that he was not disabled because he could perform a significant number of sedentary jobs in the economy. (Tr. 17-33.) The Appeals Council denied Kinder's request for review, making the ALJ's decision the final decision of the Commissioner. (Tr. 1-3); 20 C.F.R. ยงยง 404.981, 416.1481.

Kinder filed a complaint with this Court on June 17, 2013, seeking relief from the Commissioner's final decision. (Docket # 1.) In this appeal, Kinder contends that the ALJ (1) failed to give proper weight to the medical opinions of record and instead substituted his own lay opinion for those of medical professionals; (2) assigned an erroneous residual functional capacity ("RFC") and consequently provided an inaccurate hypothetical to the VE; and (3) improperly discounted the credibility of his symptom testimony. (Pl.'s Social Security Mem. ("Pl.'s Mem.") 6-20.)


A. Background

At the time of the ALJ's decision, Kinder was forty-seven years old (Tr. 33, 128); had obtained his GED and received training in heating and air conditioning (Tr. 163); and possessed work experience as a customer truck driver, assistant custodian, and in apartment maintenance (Tr. 158). On his application, Kinder alleged disability due to pancreatitis, which was diagnosed in 2006, and a back and neck injury incurred in a motor vehicle accident in March 2008. (Tr. 45-46, 162.)

At the hearing, Kinder testified that his daughter lives with him and helps with the household chores such as laundry and vacuuming. (Tr. 53.) Each week he drives himself to the grocery once and to the doctor twice. (Tr. 53.) He takes back roads when driving because he randomly gets a dizzy spell at least once a day that lasts from four to eight seconds. (Tr. 53-55.) His typical day begins by fixing breakfast and getting his daughter off to school; then he sits and watches television, frequently changing positions. (Tr. 58.) After lunch he goes "up town" eight blocks to check his mail. (Tr. 58-59.) He fixes dinner for his daughter, and they watch television together in the evening. (Tr. 59.) He occasionally attends his daughter's school activities even though it is painful for him to do so. (Tr. 59.)

When asked what keeps him from working, Kinder stated that he has "constant headaches" and is "always in pain." (Tr. 48.) He rated his constant headache pain as a "five or a six" on a ten-point scale, but stated that it can rise to an "eleven, " which he described as "unbearable." (Tr. 50.) Aside from his headaches, Kinder complained of pain centered in his neck and low back that radiates to his shoulders, legs, and feet; he has two toes that are numb on his right foot. (Tr. 48.) Elevating his legs helps reduce those symptoms, but nothing eliminates his pain (Tr. 49); rather, Vicodin "dulls" the low back pain and "just slightly helps" with his headache (Tr. 51). As to his pancreatitis, that pain "comes and goes, " but when it comes it stays for three to four days at a time; the only way he has found to calm that pain is to not eat. (Tr. 52.)

From a physical capacity standpoint, Kinder estimated that he could stand or sit for twenty minutes before having to change position, and walk a quarter of a block before having to rest. (Tr. 49-50.) He thought he could lift up to ten pounds. (Tr. 53.) He also reported that some of his medications make him sleepy. (Tr. 55.) As to his mental health, Kinder stated that he is depressed and easily becomes emotional. (Tr. 55.)

B. Summary of the Medical Evidence [3]

Kinder was taken to the emergency room following a motor vehicle accident in March 2008. (Tr. 381.) He complained of neck pain and stiffness, and had some pain, numbness, tingling, and weakness in his left shoulder, scapular, and arm. (Tr. 381.) He was treated and released. (Tr. 381.)

One week later, Kinder saw his treating doctor for continued pain complaints. (Tr. 305.) He had cervical spasms; decreased range of motion in his neck; pain in his shoulder, neck, and back; and limitations in activities of daily living. (Tr. 312.) He was diagnosed with whiplash, cervico thoracic myalgia/myositis, and erector spinae myositis/myalgia. (Tr. 311.) Kinder saw his treating doctor, Tristan Stonger, several times a week during April and May 2008 for treatment of his pain through.[4] (Tr. 302-11.) Kinder continued to complain of pain, reduced range of motion, motor weakness, and limitations in activities of daily living. (Tr. 302-11.) By April 15, Kinder's headaches and neck movements were "better" (Tr. 308); on April 18, Kinder was "overall improving" (Tr. 307).

On May 6, however, he complained of dizzy spells. (Tr. 304.) On May 19, Kinder's left arm strength was still unchanged, and thus, he was referred to Dr. Jeff Kachmann, a neurologist. (Tr. 303.) On May 28, 2008, Dr. Supriyas Kumar diagnosed Kinder with chronic pain syndrome. (Tr. 322.)

In mid-May, an MRI of Kinder's cervical spine showed mild disc protrusion at C5-C6 and left-sided unconvertebral spurring, resulting in mild left foraminal stenosis; and a moderatesized central and leftward disc extrusion at C6-C7. (Tr. 290.) The remainder of the cervical disc levels were unremarkable. (Tr. 290.) An MRI of his thoracic spine was normal except for multiple, small remote Schmorl's nodes in the anterior portion of the upper thoracic vertebral column. (Tr. 292.) And an MRI of his left shoulder showed a partial thickness tear on the capsular surface of the distal infraspinatus tendon and a small anterior/superior glenoid labral tear. (Tr. 293-94.)

In June 2008, Dr. Kachmann performed a C5-C7 anterior cervical decompression and fusion fixation on Kinder. (Tr. 368, 375.) In September, Kinder was still complaining of neck pain saying that it radiated interscapularly and caused headaches and dizziness, but denied any numbness, tingling, or pain in his upper extremities. (Tr. 368.) In October, Dr. Kachmann noted that Kinder's cervical MRI and CT scan showed no evidence of any type of neurologic impingement, and the instrumentation looked excellent. (Tr. 363.) Due to Kinder's continued neck pain, Dr. Kachmann prescribed anti inflammatories and a cervical collar. (Tr. 363.)

Also in June 2008, Kinder was examined by orthopedist, Dr. Jerald Cooper. (Tr. 428-30.) The physical examination showed left shoulder discomfort, but intact rotator cuff strength and no evidence of laxity. (Tr. 428.) Dr. Cooper also reviewed an MRI taken the previous month and opined that any symptoms from the tear standpoint were quite small. (Tr. 427.)

In August 2008, Kinder was examined by Dr. Elpidio Feliciano for purposes of his disability application. (Tr. 332-33.) Dr. Feliciano noted Kinder's history of alcoholism, chronic pancreatitis, and neck and back pain. (Tr. 332.) Kinder complained of "constant, sharp pain, knife stabbing, twisting pain, " ranging from "eight" to "ten" on a ten-point scale, and up to three hours of morning stiffness. (Tr. 332.) His pain was alleviated by medications and aggravated by movement. (Tr. 332.) A musculoskeletal exam showed that Kinder's gait was normal. (Tr. 332.) He could get up and down from the exam table, walk on heels and toes, tandem walk, hop, and squat. (Tr. 332.) His cervical spine range of motion was decreased; he had tenderness and spasms. (Tr. 332-33.) A straight leg raising test was negative, and muscle strength and tone were normal. (Tr. 333.) His grip strength and fine finger skills were also normal. (Tr. 333.)

In October 2008, Dr. J.V. Corcoran, a state agency physician, reviewed Kinder's record and concluded that he could lift less than ten pounds frequently and ten pounds occasionally, stand or walk six hours in an eight-hour workday, sit for six hours in an eight-hour workday, and perform unlimited pushing and pulling. (Tr. 346-52.) He further concluded that Kinder could occasionally stoop, kneel, crouch, crawl, and climb ramps or stairs; but never climb ladders, ropes, or scaffolds. (Tr. 347.) He assigned no visual or upper extremity reaching, handling, fingering, or feeling limitations; the only environmental restriction he included was to avoid hazards such as slippery, uneven terrain, unprotected heights, and moving machinery. (Tr. 348.)

In July 2008, Dr. J. Cooper of Fort Wayne Orthopaedics administered several steroid injections to Kinder's left shoulder for pain relief. ( See, e.g., Tr. 416, 424.) In December, Dr. Cooper assigned Kinder the following temporary work restriction: "no repetitive use of his left arm." (Tr. 411.)

That same month, Kinder was seen by Dr. David Lutz for a physical medicine and rehabilitation consultation. (Tr. 402-05.) Kinder complained of "burning, stabbing, and pinching" pain in his neck and left upper shoulder girdle, rating it an "eight" on a ten-point scale. (Tr. 402.) He stated that movements of any kind exacerbated his symptoms. (Tr. 402.) Upon exam, cervical facet provocation maneuvers and shoulder impingement signs were somewhat positive, and cervical range of motion was moderately reduced. (Tr. 403.) Dr. Lutz observed active trigger points in the left cervical paraspinals and left upper trapezius ridges; sensation, however, was intact throughout the upper extremities. (Tr. 403.)

Dr. Lutz's impression was cervicalgia, cervical strain and probable whiplash injury to the cervical spine and possible superimposed cervical facet mediated pain; status post C5-7 cervical fusion; possible superimposed myofascial pain syndrome; and left shoulder pain and partial thickness tear of the capsular surface of the distal infraspinatus tendon. (Tr. 403.) Dr. Lutz then administered trigger point injections to Kinder's left cervical paraspinals and left upper trapezius ridges and prescribed a course of physical therapy. (Tr. 403-04.) Dr. Lutz explained that he would prescribe pain medications if Kinder signed a pain contract and provided a urine specimen for toxicology screen; Kinder declined, opting instead to see if his family physician would prescribe them. (Tr. 404.) Dr. Lutz noted that Kinder would "remain off work for now." (Tr. 404.)

Also in December 2008, Kinder suffered an acute inferior myocardial infarction. (Tr. 455-461.) He underwent a stent procedure. (Tr. 470.) In January 2009, Kinder was evaluated by Dr. Brandi Rudolph, a psychiatrist, for purposes of his disability application. (Tr. 477-78.) Kinder reported that he feels depressed and worthless, lacks energy, and has difficulty maintaining concentration. (Tr. 477.) He has thought about suicide but never attempted it; he denies homicidal thoughts. (Tr. 477.) He reported excessive worrying and monthly panic attacks. (Tr. 477.) A mental status exam revealed that Kinder was guarded, but cooperative; angry and depressed; and logical, goal-directed, and sequential. (Tr. 477.) He exhibited good judgment and impulsivity, fair insight, and average intelligence. (Tr. 477.) Dr. Rudolph assigned a Global Assessment of Functioning ("GAF") score of 62[5] and diagnoses of post traumatic shock syndrome ("PTSD"), major depressive disorder, and panic disorder without agoraphobia. (Tr. 481-82.)

The following month, William Shipley, Ph.D., a state agency psychologist, reviewed Kinder's record and found that his mental impairment was not severe. (Tr. 526-39.) Specifically, he opined that Kinder's mental impairment caused just mild difficulties in activities of daily living; maintaining ...

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