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Meyerink v. Colvin

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

February 24, 2015

LOWELL D. MEYERINK, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.

OPINION AND ORDER

PAUL R. CHERRY, Magistrate Judge.

This matter is before the Court on a Complaint [DE 1], filed by Plaintiff Lowell D. Meyerink on September 16, 2013, and Plaintiff's Brief in Support of Reversing the Decision of the Commissioner of Social Security [DE 12], filed on January 27, 2014. This matter became fully briefed on May 22, 2014. Plaintiff challenges the Social Security Administration's determination that he is not disabled under the Social Security Act.

I. Procedural Background

Plaintiff filed his first application for disability benefits in November 2004. That application was denied initially and on review. Plaintiff then sought a hearing with an administrative law judge (ALJ), but withdrew that request before a hearing could be held. The Agency dismissed his claim in December 2006. Plaintiff tried a second time in November 2009. That request was denied initially, and he did not seek review.

Plaintiff is now in the midst of his third attempt. He applied for disability insurance benefits on February 9, 2011, alleging that he had been disabled since August 5, 2010, due to degenerative disc disease and other back problems, high blood pressure, tendinitis in his left elbow, and various neuropathies. The agency denied his claim initially and upon reconsideration. Plaintiff then asked for a hearing before an ALJ, which took place on October 4, 2012, before ALJ David R. Bruce. Plaintiff appeared by counsel at the hearing and the ALJ heard testimony from Plaintiff and from Vocational Expert (VE) Thomas Grzesik. The ALJ issued a written decision denying benefits on October 15, 2012, making the following findings.

1. The claimant meets the insured status requirements of the Social Security Act though December 31, 2015.
2. The claimant has not engaged in substantial gainful activity since August 5, 2010, the alleged onset date.
3. The claimant has the following severe impairments: degenerative disc disease.
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.
5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to lift and/or carry 10 pounds occasionally, and nominal weight frequently; stand and/or walk about 2 hours in an 8 hour work day, and sit about 6 hours in an 8 hour workday. The claimant can never climb ladders, ropes, or scaffolds, but can occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl. The claimant must be allowed to alternate between sitting and standing, such that after he sits for an hour, he should be allowed to stand for 15 minutes. The claimant should avoid unprotected heights, moving mechanical parts, and vibrations. The claimant is limited to simple tasks and simple work-related decisions. Interaction with supervisors, co-workers, and the general public is limited to frequent.
6. The claimant is unable to perform any past relevant work.
7. The claimant was born in 1963 and was 46 years old, which is defined as a younger individual age 45-49, on the alleged disability onset date.
8. The claimant has at least a high school education and is able to communicate in English.
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled, " whether or not the claimant has transferable job skills.
10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform.
11. The claimant has not been under a disability, as defined in the Social Security Act, from August 5, 2010, through the date of this decision.

The Appeals Council denied Plaintiff's request for review, leaving the ALJ's decision the final decision of the Commissioner. See 20 C.F.R. §§ 404.981. On September 16, 2013, Plaintiff 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).

III. Factual Background

A. Medical History and Hearing Testimony

Plaintiff hurt his lower back sometime around 2004. He had spinal fusion surgery and was able to return to work as a diesel mechanic. In July 2010, he again injured his back. The injury occurred at work when he lost control of an engine block he was aligning. A subsequent MRI revealed that he had a herniated left lateral disc at C5-C6, and an EMG revealed an acute left-sided C6 radiculopathy, ulnar radiculopathy in the right elbow, and bilateral median nerve radiculopathies.

Starting in August 2010, Plaintiff began seeing Dr. Luken, a neurosurgeon. Dr. Luken initially recommended that Plaintiff stay off work pending further evaluation and treatment. In September 2010, however, Dr. Luken recommended that Plaintiff return to work in a strictly sedentary capacity that allowed for at-will change of positions. Dr. Luken noted that Plaintiff could only work when he was not involved in physical therapy. This "suggestion was met with a litany of vociferous objections" by Plaintiff and his wife. (AR 524).

In October 2010, Dr. Luken changed tack, opining that Plaintiff was unable to perform any of the functions of his job as a result of his condition. That form also stated that no return-to-work date could be determined at that time. Dr. Luken reiterated this conclusion a month later.

Then, on March 17, 2011, Dr. Luken filled out a form titled "Listing § 1.04A - Spinal Nerve Root Compression." (AR 578). He opined that Plaintiff suffered from a herniated nucleus pulposus in the cervical spine, that there was evidence of nerve root compression, that Plaintiff had neuro-anatomic distribution of pain, and that Plaintiff had limitation of spinal motions linked to a spinal fusion surgery. Dr. Luken also stated that Plaintiff did not have muscle weakness, but immediately added that Plaintiff did have diffuse weakness in his upper extremities. Dr. Luken also noted that Plaintiff's impairments interfered with his ability to walk a block at a reasonable pace on rough or uneven surfaces, that Plaintiff had sensory or reflex loss, that there was involvement with Plaintiff's lower back with positive straight-leg raising both sitting and laying down. Dr. Luken concluded that Plaintiff's clinical findings matched all of the findings required by Listing 1.04A.

A month later, Plaintiff saw Dr. Rahmany, a state agency examining physician, who found that Plaintiff had full range of motion in his back and extremities as well as normal grip strength and normal fine finger manipulation. He also noted that Plaintiff could walk normally without an assistive device and could stoop, squat, and walk heel to toe and tandemly without difficulty.

Treating physician Dr. Luebbe opined in September 2012 that Plaintiff suffered from a number of ailments as a result of lumbar fusion, cervical disc herniation, and depression. He noted that Plaintiff suffered from chronic pain and that his medications made him drowsy and interfered with his concentration.

Dr. Luebbe said that Plaintiff could not walk more than one block, could not sit for more than thirty minutes at a time, could not stand for more than ten minutes at a time, was limited to two hours of standing and two hours of sitting during an eight-hour work day, with the need to change positions at will. He also said that Plaintiff would miss work about four times per month, had to take frequent breaks, and could lift ten pounds rarely and less than ten pounds occasionally.

Plaintiff testified at the hearing that he suffered from intense back pain. He testified that he was unable to sit for long periods of time, explaining that he often needed to ...


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