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Lemere-Jackson v. Colvin

United States District Court, N.D. Indiana, South Bend Division

September 17, 2014

CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.



On September 3, 2013, Plaintiff Kimberlee Lemere-Jackson ("Lemere") filed her complaint in this Court. On February 13, 2014, Lemere filed her opening brief requesting that this Court reverse and remand this matter to the Commissioner to properly address the evidence. On May 22, 2014, Defendant Acting Commissioner of Social Security, Carolyn W. Colvin ("Commissioner") filed her response brief. Lemere filed her reply brief on June 11, 2014. This Court may enter a ruling in this matter based on the parties' consent, 28 U.S.C. § 636(c), and 42 U.S.C. § 405(g).


On July 30, 2010, Lemere filed her application for Title II Disability Insurance Benefits and Title XVI Supplemental Security Income pursuant to 42 U.S.C. §§ 416(i), 423 alleging disability due to fractures and post traumatic arthritis in her left femur, left wrist, left hip, and a slight brain injury arising out of an accident on June 4, 2004, with an alleged onset of disability of June 4, 2010. Her claims were denied initially on October 29, 2010, and also upon reconsideration on February 8, 2011. Lemere appeared at a hearing before an Administrative Law Judge ("ALJ") on March 29, 2012.

On May 22, 2012, the ALJ issued a decision holding that Lemere was not disabled. The ALJ found that Lemere met the insured status requirements of the Social Security Act through December 31, 2014. The ALJ also found that Lemere had not engaged in substantial gainful activity since June 4, 2010, and her status post remote history of multiple lower left extremity fractures and left wrist, and tendonitis of the right shoulder constituted severe impairments. However, the ALJ found that Lemere did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ found that Lemere had the residual functional capacity ("RFC") to lift and/or carry 10 pounds occasionally and less than 10 pounds frequently, stand and/or walk for brief periods totaling no more than 2 hours in an 8 hour workday, and sit for 6 hours in an 8 hour workday, provided that she has the opportunity to stand and take a couple of steps for 5 minutes out of every 60 minute period without abandoning the workstation or losing concentration on the task before her. He also found that Lemere can occasionally climb ramps and stairs, occasionally balance, stoop, kneel, crouch and crawl, but she can never climb ladders, ropes or scaffolds. He then found that Lemere is able to use her bilateral hands for frequent fine and gross manipulation, but she can never reach overhead using her dominant right arm, and she can never perform tasks requiring a forceful or repetitive grip and grasp or the use of vibrating tools. In addition, Lemere needs to use a cane for walking on uneven terrain or for prolonged ambulation over 100 yards. The ALJ then found that Lemere is capable of performing her past relevant work as an outpatient admitting clerk.

On July 9, 2013, the Appeals Council denied review of the ALJ's decision making it the Commissioner's final decision. See Liskowitz v. Astrue, 559 F.3d 736, 739 (7th Cir. 2009); 20 C.F.R. § 404.981. On September 3, 2013, Lemere filed a complaint in this Court seeking a review of the ALJ's decision.


A. Facts

Lemere was a fifty-four year old female at the time the ALJ denied her claims. She has a high school education and completed two years of college. Lemere has performed past relevant work as an outpatient admitting clerk and received specialized job training for medical coding and transcription.

1. Claimant's Hearing Testimony

At the hearing, Lemere testified that at her last job, she sat seven and a half hours in an eight hour work day. The job required her to be able to use her hands to fax documents as well as use a computer. She testified that she stopped working at that job because it had "gotten to a point where it was getting very difficult to be there for any amount of time." Doc. No. 13 at 41. She told the ALJ she felt she was unable to work because she's unable to be in a seated or standing position for over five minutes without shifting or moving to reduce the pain in her left hip and femur. She stated that she drove approximately forty miles to the hearing, but had to stop twice because her hip and shoulder bothered her.

Lemere also testified that Dr. Randolph Ferlic, her hand surgeon, had suggested the next step for the pain in her left wrist would be to have it fused, but that she did not want to pursue fusion and risk losing any more movement in her wrist. Doc. No. 13 at 48. Lemere noted that she had stopped seeing Dr. Ferlic because her insurance did not cover it. She stated that she believes she would be able to lift up to ten pounds. She also stated that she can stand for up to five minutes and walk about fifty feet. Lemere then testified that she used her cane every time she left the house. The ALJ questioned her use of the cane due to a consultative examination from 2010 that said Lemere had said she was supposed to use her cane but did not. Lemere replied that the only reason she wouldn't have been using her cane is if her right shoulder was in pain.

2. Medical Evidence

Lemere was involved in a motorcycle accident on June 5, 2004. As a result, her initial serious injuries included a broken left leg with the femur having pierced the skin, a left hip fracture, a fracture to her shin bone by the left knee, a broken left wrist, and a tear in ligament tissue inside her left knee. Immediately after the accident, Lemere underwent a series of procedures for her injuries. Her left femur was washed out and cleaned by removing any foreign debris or dead tissue. A rod was then inserted from her knee up into her femur, and she had the wound on her left thigh closed. She then had her left hip bone put back into alignment and secured with a device to hold the bone in place, and had hardware placed in her left knee. Lastly, she had her wrist bone put back into place. Two days ...

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