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Minnick v. Colvin

United States Court of Appeals, Seventh Circuit

January 7, 2015

DANIEL P. MINNICK, Plaintiff-Appellant,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant-Appellee

Argued October 28, 2014.

Page 930

Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. No. 1:12-cv-00265-JVB-RBC -- Joseph S. Van Bokkelen, Judge.

For Daniel P. Minnick, Plaintiff - Appellant: Timothy E. Burns, Attorney, Keller & Keller, Indianapolis, IN.

For CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant - Appellee: Luke F. Woltering, Attorney, Social Security Administration, Office of the General Counsel, Region V, Chicago, IL.

Before BAUER, POSNER, and TINDER, Circuit Judges.

OPINION

Page 931

Bauer, Circuit Judge.

Plaintiff-Appellant, Daniel P. Minnick (" Minnick" ), suffers from a number of serious medical problems, including fibromyalgia, chronic obstructive pulmonary disease (" COPD" ), and degenerative disc disease. In 2010, he applied for disability insurance benefits under the Social Security Act. After the Disability Determination Bureau (" DDB" ) denied Minnick's claim in December 2010, Minnick requested an administrative hearing before an Administrative Law Judge (" ALJ" ). The ALJ determined that Minnick is not disabled within the meaning of the Social Security Act. The Appeals Council denied Minnick's request for review, rendering the ALJ's decision final. 20 C.F.R. § 404.981. Minnick then sought review in the district court, which affirmed the ALJ's decision on September 27, 2013. We conclude that the ALJ made a number of errors in her consideration of the record and therefore reverse and remand Minnick's case for further proceedings.

I. BACKGROUND

The medical records in this case demonstrate that Minnick sought treatment for numerous health concerns over the years, but his chronic pain and back ailments predominate. At various times, Minnick has been assessed as having the following ongoing ailments: degenerative disc disease, spondylosis, COPD, fibromyalgia, migraine headaches, intermittent headaches, hypertension, anxiety, and depression. We confine our discussion of Minnick's medical records to the information most relevant to the ALJ's decision and this appeal.

A. Medical Evidence

Minnick sought treatment for his pain beginning in May 2008, when he saw his attending physician, Dr. Brian Zurcher. Dr. Zurcher diagnosed severe joint pain. From September to November of that year, Minnick was also treated for exacerbation of his preexisting COPD. In December, he reported worsening shortness of breath related to his COPD, but still felt he could return to work.

In January 2009, Minnick saw Dr. Keith Harvey complaining of lower back pain radiating down both legs. Dr. Harvey believed the pain was likely muscular in nature, but secondary to deconditioning and obesity. Dr. Harvey suggested that Minnick may have fibromyalgia. When Minnick's condition did not improve, Dr. Harvey sent him for x-rays and an MRI of the lumbar spine, which revealed lumbar spondylosis, mild hypertrophic degenerative spur formation, and a bulging disc. As a result of these tests, Dr. Harvey diagnosed Minnick with lumbar spondylosis, recommended walking to get his weight down, and prescribed Vicodin for the pain. Another round of x-rays on December 14, 2009, showed disc space narrowing and an

Page 932

MRI showed mild degrees of spinal stenosis without evidence of spinal cord compression or nerve root compression. An MRI on December 16, 2009, analyzed this time by Dr. Zurcher, showed evidence of a disc protrusion involving two lumbar vertebrae, resulting in mild to moderate mass effect upon two nerve roots.

In June 2010, Minnick saw Dr. James Hanus, D.O., who listed daily headaches, intermittent migraines, and fibromyalgia as possible etiologies of Minnick's problems. At a follow-up in July, Dr. Hanus noted improvements with the headaches, but reported left back pain, thoracic pain, and carpal pedal spasms in Minnick's arms, as well as left leg pain. He diagnosed " [p]robably some" fibromyalgia, headaches, migraines, and thoracic pain.

In October 2010, rheumatologist Dr. David Campbell examined Minnick. Dr. Campbell assessed a positive straight leg raise in both legs at 30 degrees. He found no trigger points indicating fibromyalgia, but cautioned that he " could have caught [Minnick] on a good day" and that Minnick's pain history was strongly suggestive of fibromyalgia. Minnick had two follow-up appointments with Dr. Harvey in November 2010. At the first appointment, Dr. Harvey increased Minnick's painkiller dosage. At the second appointment, he noted that the increased dosage had not helped manage Minnick's pain.

Minnick also met with DDB consultant Dr. B.T. Onamusi in November 2010. Dr. Onamusi diagnosed fibromyalgia with generalized muscle pain and fatigue, in addition to COPD. In his physical examination notes, Dr. Onamusi documented Minnick's ambulatory limitations: Minnick walked with a short gait, appeared to be in discomfort while he walked, needed a cane for long distance ambulation, and had difficulty transferring onto and off of the examination table due to pain. He also noted that Minnick had " few areas of trigger points." Another DDB consultant, Dr. J. Sands, reviewed Minnick's medical records in November 2010, but never examined him. After a review of the records, Dr. Sands opined that in an eight hour work day, Minnick could stand or walk for two hours and sit for six. He also stated Minnick could occasionally lift ten pounds, frequently lift less than ten pounds, could never climb ladders, ropes, kneel, crouch, or crawl, but could occasionally climb ramps or stairs, or balance or stoop. Dr. Sands' report did not reference Minnick's history of x-ray or MRI results.

In December 2010, Minnick saw Dr. Jose Panszi, complaining of pain in his legs from the hips down. Dr. Panszi documented Minnick's worsening pain, as well as his ...


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