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David v. Commissioner of Social Security

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

April 1, 2015

MARK R. DAVID, Plaintiff,


SUSAN COLLINS, Magistrate Judge.

Plaintiff Mark R. David 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 Supplemental Security Income ("SSI").[1] ( See Docket #1.) For the following reasons, the Commissioner's decision will be AFFIRMED.


David applied for SSI in January 2011, alleging disability as of January 26, 2011.[2] (Tr. 69, 181.) The Commissioner denied his application initially and upon reconsideration. (Tr. 69-70.) David requested a hearing, but was incarcerated at the time and could not appear. (Tr. 133.) On June 28, 2012, Administrative Law Judge Whitfield Haigler, Jr. ("ALJ"), dismissed David's request for hearing due to his failure to appear (Tr. 71-75), and David appealed that dismissal to the Appeals Council (Tr. 133).

On August 3, 2012, the Appeals Council remanded the case to the ALJ with instructions to determine whether David had a "good reason" for failing to appear at his hearing. (Tr. 76-78.) After finding that David's incarceration constituted good cause for failure to appear, the ALJ held a hearing on January 28, 2013, at which David, who was represented by counsel, and a vocational expert testified. (Tr. 31-67.)

On February 7, 2013, the ALJ rendered an unfavorable decision to David, concluding that he was not disabled because he could perform a significant number of light work jobs in the economy. (Tr. 14-25.) After the Appeals Council denied David's request for review, the ALJ's decision became the final decision of the Commissioner. (Tr. 8-12.)

David filed a complaint with this Court on May 21, 2014, seeking relief from the Commissioner's final decision. (Docket #1.) In this appeal, David alleges that the ALJ: (1) improperly discounted the credibility of his symptom testimony; and (2) failed to adequately account for his vertigo when assessing his residual functional capacity ("RFC"). (Social Security Opening Br. of Pl. 7-14.)


A. Background

At the time of the ALJ's decision, David was fifty years old and had obtained his GED, a six-month technical certificate in custodial maintenance, and an associate's degree in private security. (Tr. 40, 42, 181, 223.) He had a limited work history with rather brief stints as a factory laborer, construction worker, and restaurant cook (Tr. 230); and a history of multiple incarcerations (Tr. 194).

B. David's Testimony at the Hearing

At the hearing, David, who was five feet ten inches tall and weighed 185 pounds, testified that he lives with his wife. (Tr. 41.) In a typical day, he experiences fatigue, and thus, often naps for an hour or two in the afternoon; he attributes this to his blood pressure medication. (Tr. 54, 56-57.) About eight days a month, he feels so fatigued that he "can't get up" or "stay awake." (Tr. 56-57.)

David testified that he suffers from constant knee pain. (Tr. 45, 47.) He estimated that he could stand for ten to fifteen minutes before needing to sit; walk for 100 feet before resting; and sit for fifteen minutes before needing to change positions. (Tr. 45-47.) He stated that he has some difficulty maintaining his balance due to his knee problems, and his knee pain wakes him several times a night. (Tr. 47-48, 52.) He rated his knee pain as a "six" on ten-point scale, stating that it reduces to a "four" or "five" with medication. (Tr. 48-49.) David takes antiinflammatories for his pain, but no narcotics; he complained of medication side effects of upset stomach, constipation, and diarrhea. (Tr. 49.) He wears an over-the-counter knee brace when he has an abnormal amount of pain. (Tr. 53.)

David, who is left-handed, further testified that in November 2011 he underwent a fusion of his left wrist and hand, together with a carpal tunnel release. (Tr. 49, 51.) As a result, his left wrist is "kind of locked into one position." (Tr. 50.) He claimed can grip a screwdriver, but not tight enough to turn it; can print at a slow pace, but cannot type or write in cursive; has difficulty turning a steering wheel when driving; and cannot turn a doorknob or lift a gallon of milk with his left hand. (Tr. 50-51, 57.) He also experiences some carpal tunnel symptoms in his right wrist, but is trying to "avoid doing anything" because of his left wrist limitations. (Tr. 55, 58.)

In addition, David complained of feeling dizzy and seeing "white floating lights in [his] eyes" when he stands up after sitting for a long while; these symptoms typically last from five to ten minutes. (Tr. 52.) To cope, when rising from sit to stand he "stand[s] still, hold[s] onto something[, ] and wait[s] for [his] vision to come back." (Tr. 52-53.) He takes Antivert for these symptoms, which helps "for the most part." (Tr. 21.) He added that before Antivert, he "would black out and fall" if he tried to stand too quickly. (Tr. 53.) His reported that his wife showers with him to make sure that he does not fall. (Tr. 53.)

C. Summary of the Relevant Medical Evidence

In 1994, David injured his left knee in a fall, and he underwent surgery in 1995 to repair a torn anterior cruciate ligament and medial meniscus. (Tr. 290-92, 296-98.)

On February 5, 2009, David complained of dizziness and nausea; he was treated with Phenergan, after which his symptoms improved. (Tr. 334-36.) One week later, David saw Dr. Mark Charpentier for similar complaints. (Tr. 332-33.) He diagnosed David with vertigo (poor control) and prescribed Meclizine (a generic drug for Antivert). (Tr. 332-33.) In October 2009, David again complained of dizziness to Dr. Charpentier, who noted that David had benign positional vertigo. (Tr. 319-20.) David had a normal exam, including normal neurological findings, and was prescribed Dramamine. (Tr. 320.)

In January 2010, David complained of experiencing daily episodes of vertigo lasting from one to four minutes. (Tr. 312-13.) He had a normal examination, and his medications, including Antivert and Naproxen, were continued. (Tr. 312-13.) In April 2010, David complained to Dr. Charpentier of knee pain, yet stated that he had no difficulty with exercise. (Tr. 305.) Dr. Charpentier observed that David had minimal pain and normal range of motion; he continued David's medications. (Tr. 305-06.) He further noted that David's benign positional vertigo was controlled with medication. (Tr. 305-06.)

In September 2010, David complained that his vertigo had returned with ringing in his ears; he admitted that he had stopped taking his Antivert in August. (Tr. 358.) In October, David reported increased joint pain, mostly in his wrists, after he ran out of Naproxen. (Tr. 357.) In November, David stated that he was "doing well" and that the Antivert "help[ed] to keep the edge off." (Tr. 356.) He did, however, have some pain in his left hand. (Tr. 356.)

In March 2011, David underwent a surgical repair of an umbilical hernia. (Tr. 370-74, 504.) His recovery was uneventful. (Tr. 482.)

On March 23, 2011, Dr. H.M. Bacchus, a state agency physician, examined David for purposes of his disability application. (Tr. 375-78.) He had an antalgic gait, favoring his left knee; difficulty with heel, toe, and tandem walk due to complaints of pain and dizziness; and was somewhat unsteady with ambulatory and range of motion maneuvers. (Tr. 376.) He was unable to left hop, but could squat one-third way down with support; he was slow to rise. (Tr. 376.) He had pain with palpation and range of motion of his left knee; his gait was slower in nature, but sustainability appeared fair on even ground. (Tr. 376.) Muscle strength and tone in his extremities and grip strength were 4/5 on the left and 5/5 on the right; his fine and gross dexterity were slower in nature, but appeared preserved. (Tr. 376.) Dr. Bacchus concluded that David was limited in repetitive squatting, climbing, and walking on uneven ground; had difficulty with any kneeling or crawling; and should avoid working in unprotected heights or climbing ladders due to his balance issues. (Tr. 377.)

On March 29, 2011, Dr. Jonathon Sands, a state agency physician, reviewed David's record and concluded that he could lift twenty pounds occasionally and ten pounds frequently; stand or walk about six hours in an eight-hour workday; sit about six hours in an eight-hour workday; occasionally climb ramps and stairs, but never ladders, ropes, or scaffolds; occasionally balance, stoop, kneel, crouch, and crawl; and avoid unprotected heights and hazardous machinery. (Tr. 384-391.) He noted that David's benign positional vertigo was treated with Antivert and was controlled. (Tr. 385.) Dr. Sands's opinion was later affirmed by a second state agency physician, Dr. B. Whitley. (Tr. 406.)

In July 2011, David saw Dr. Jerry Mackel of Fort Wayne Orthopaedics for complaints of pain, numbness, and weakness in his left hand and wrist; and pain, weakness, and a "giving way sensation" in his left knee. (Tr. 410.) As to his wrist, x-rays showed significant, but not severe, degenerative arthritis. (Tr. 410.) Dr. Mackel opined that David's complaint of left wrist weakness was "a combination of arthritis of the wrist of mild-to-moderate severity and early intermittent carpal tunnel symptoms." (Tr. 410.) He prescribed night splinting and an injection to the carpal tunnel. (Tr. 410.) X-rays of David's knee appeared normal with good joint space and no lytic or blastic changes. (Tr. 411.) Dr. Mackel suspected that Dave had some early arthritic changes, so he injected his knee and recommended use of a knee brace. (Tr. 411.)

In November 2011, Dr. Niles Schwartz performed a full arthrodesis of David's left wrist and a carpal tunnel release. (Tr. 375.) By March 2012, David told Dr. Schwartz that all his pain was gone, he had no complaints, and that he had been doing his activities without an issues. (Tr. 455.) Dr. Schwartz noted that David had good grip strength, but some decreased sensation in his fourth ...

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