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Berwanger v. Colvin

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

March 23, 2015

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


PHILIP P. SIMON, Chief District Judge.

Sean B. Berwanger appeals the Social Security Administration's determination that he is not disabled. In essence, he argues that the ALJ erred because he did not give Berwanger's treating physician's opinion controlling weight, improperly evaluated his credibility regarding the severity of his symptoms, and failed to include any limitations regarding his hands in the hypothetical posed to the vocational expert. Because I find that the ALJ relied on substantial evidence in making each of these findings, I AFFIRM his decision.


Readers looking for a more extensive discussion of Berwanger's medical records are directed to the detailed summaries in the ALJ's decision (R. at 8-25)[1] and in Berwanger's opening brief (DE 11). Rather than reiterating those summaries, I will give a brief overview of the history of Berwanger's health issues and proceedings before the Social Security Administration.

Berwanger's Health

Berwanger's back troubles began at least as early as 2008. A lumbar MRI from February 2009 showed moderate spinal stenosis which means that Berwanger's spinal canal in the lumbar area had narrowed and was compressing the spinal cord and other nerves. Between 2008 and 2010, Berwanger saw his family doctor, Dr. Rebecca Case, M.D., about monthly or bimonthly to treat this condition. The main purpose of these visits appears to have been pain medication management. ( See generally R. 249-56.) During this time, Berwanger's primary treatments included Vicodin ( see e.g. R. 249, 256), therapeutic injections (R. 176, 191-92), medial branch blocks (R. 230-31), and physical therapy (R. 256). Berwanger continued to work throughout 2008, 2009, and 2010. In December 2010, however, Berwanger stopped working due to his back pain. (R. 16.)

At this point, Berwanger saw Dr. Case approximately every month through August 2011, and then only once over the next 12 months. During these 2010 and 2011 visits, Berwanger reported pain, and Dr. Case treated his pain with various medications. Some helped; some didn't. During this time, Dr. Case made virtually no clinical findings other than noting a visual and palpable muscle spasm in June 2011, some tenderness in the lumbar area at two visits, a somewhat reduced deep tendon reflex at two visits, a loss of muscle mass in the thighs (but no measurements provided) in December 2011, and negative straight leg raising at every visit.[2] ( See R. 243-47, 347, 353.) She also observed on two occasions during this time period that Berwanger had difficulty sitting still and needed to move around to be comfortable. ( See e.g R. 245, 353.) Dr. Case recommended that Berwanger find work that was less physically demanding. (R. 244.)

In June 2011, Berwanger ended up in the Emergency Room with back pain. (R. 317.) His examination was fairly benign, with no back tenderness, spasm, definite trigger point, nor deformity. (R. 318-19.) He also had adequate range of motion, was not in acute distress, and had no trouble walking. ( Id. ) The E.R. discharged him with the medications naproxen, hydrocodone-acetaminophen, and Flexeril. ( Id. )

The next month, Berwanger saw Dr. Mohammad Rahmany, M.D., after being referred by the State of Indiana Disability Determination Bureau. Here again, Berwanger's examination results were benign with no back tenderness. (R. 329-30.) Berwanger also had full range of motion in his back and lower extremities, a normal gait, normal reflexes, and he could stoop, squat, walk both heel-to-toe and in tandem, and stand from a sitting position without difficulty. ( Id. ) Dr. Rahmany did find a positive straight leg raise, but found this result "questionable." (R. 330.)

A month later, M. Ruiz, M.D., a state agency medical consultant, found that Berwanger could perform functions consistent with light work. Specifically, Dr. Ruiz found that Berwanger could occasionally lift 20 lbs; could frequently lift 10 pounds; could stand, sit, or walk about 6 hours in an 8-hour workday; and had no limitations regarding pushing or pulling; no manipulative limitations ( e.g. reaching, handling, fingering, and feeling); no visual limitations; no communicative limitations, and no environmental limitations. (R. 336-39.) Dr. M. Brill, M.D. - another state agency medical consultant - affirmed these findings in October 2011. (R. 350.)

That same month, October 2011, Dr. Case submitted the first of her four opinion letters, finding that Berwanger's "disease is limiting his ability to carry out gainful employment, " he had "limited mobility, " and that he was unable to sit, stand, or walk for more than 30 to 45 minutes at a time. (R. 349.) By December, Dr. Case reported that Berwanger was "unable to sit for more than 5 minutes at a time during our examination" and that he needed to move about to find a comfortable position to stand in. (R. 353.) She also stated that he "does have disability which does not allow gainful employment." ( Id. )

Berwanger did not see Dr. Case again until nine months later in July 2012. At this visit, he asked Dr. Case to author another medical source statement for his disability application. (R. 362.) This time, Dr. Case reported that Berwanger was "not able to sit for more than 10 to 15 minutes at a time before having to reposition for pain control" and that he could "stand and/or walk for only 5 to 10 minutes at a time before the pain becomes unbearable." (R. 354.) Dr. Case again stated that Berwanger was disabled. ( Id. )

Berwanger saw Dr. Case approximately monthly from July through September 2012. Here again, Dr. Case made very few clinical findings. Berwanger's examination findings were mostly "unchanged." (R. 361-62.) His movements were slow, he had difficulty standing up straight, and his straight leg raise was negative. (R. 361.) In her two most recent progress notes from August and September 2012, Dr. Case reported that despite his reports of pain, Berwanger was resistant to long-term narcotics, was managing "reasonably well" with the medicine he was currently taking, felt that Vicodin provided him "reasonable relief." ( Id. ) Despite this finding, Dr. Case authored another opinion letter in October 2012 finding that Berwanger's "discomfort precludes him from obtaining gainful ...

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