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Heintz v. Commissioner of Social Security

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

June 5, 2015



SUSAN COLLINS, Magistrate Judge.

Plaintiff Bradley Scott Heintz 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 Disability Insurance Benefits ("DIB").[1] ( See DE 1). For the following reasons, the Commissioner's decision will be REVERSED, and the case will be REMANDED to the Commissioner for further proceedings in accordance with this Opinion and Order.


Heintz applied for DIB in June 2011, alleging disability as of April 30, 2010. (Administrative Record ("AR") 119). The Commissioner denied his application initially and upon reconsideration. (AR 68, 74). Heintz requested a hearing before an Administrative Law Judge (AR 78), and Administrative Law Judge Steven J. Neary ("the ALJ") held a hearing on February 1, 2013, at which Heintz was represented by counsel (AR 39). On March 4, 2013, the ALJ issued an unfavorable decision, finding that Heintz was not disabled because he was capable of making a successful adjustment to other work that existed in significant numbers in the national economy. (AR 34). Heintz requested the Appeals Council review the ALJ's decision (AR 16), and the Appeals Council denied Heintz's request, making the ALJ's decision the final decision of the Commissioner (AR 9).

Heintz filed a complaint with this Court on June 25, 2014, seeking relief from the Commissioner's final decision. (DE 1). In this appeal, Heintz alleges that the ALJ erred by: (1) failing to adequately consider and account for all of Heintz's impairments; (2) rejecting the opinion of a consultative examiner without providing good cause for doing so; and (3) improperly discounting Heintz's credibility. (DE 19 at 3-18).


A. Background

At the time of the ALJ's decision, Heintz was 42 years old and had a sixth-grade education. (AR 42). His employment history included a job as a warehouse worker, where he loaded and unloaded trucks. (AR 42-43, 176). Heintz last worked in 2010 unloading trucks for Wal-Mart Distribution, but he was fired after he hurt his back when he fell backwards on the job. (AR 42-43).

B. Heintz's Testimony at the Hearing

At the hearing, Heintz, who was six feet two inches tall and weighed 442 pounds, testified that he lives with his wife and his 11 year-old child. (AR 42). Heintz testified that he has severe back pain all of the time. (AR 43-44). He sees a physician for his back pain and is prescribed Cymbalta, Lyrica, and ibuprofen, which he says help a little bit to make the pain less "sharp." (AR 44). Heintz also complained of trouble sleeping and sleep apnea, and he said that standing, sitting, or walking for too long aggravates his back pain. (AR 45).

Heintz testified that he cannot walk a block, that he cannot stand for more than five minutes, and that he could only sit for around 10 to 15 minutes before needing to stand up. (AR 45-46). He complained of pain in his hands and right elbow and problems gripping with his hands. (AR 46, 55-56). Heintz stated that he was going back to see his doctor about his hands and elbow in a few weeks after the hearing. (AR 46, 56). Heintz testified that he could lift a glass of milk comfortably, and that he could also lift a gallon of milk, but it hurts if he turns a certain way. (AR 46-47).

Heintz reported that he spends his days mostly lying down in bed. (AR 47). He also walks around the house for a little bit, stands briefly, and lets the dog out. (AR 47). Heintz gets out of the house once in awhile, to visit family. (AR 47). Heintz stated that he tries to help with things around the house, but he really just lies down during the day, which he believes is why he has gained so much weight, 150 pounds since 2010. (AR 48).

Heintz testified that he is able to bathe himself by sitting on a bench in the shower. (AR 49). He stated that he can dress himself but cannot bend over to pick things up or tie his shoes, and his wife puts his socks on for him. (AR 49-50).

Heintz testified that when he tries to do things around the house, he overdoes it, and he has to lie down in bed for a long time to recover. (AR 50). Heintz testified that when he drives, it is for no more than five or ten minutes, since he lives just down the road from his family. (AR 50). He stated that he cooks by sitting in a chair by the stove. (AR 50). Heintz watches TV but does not really do much else for hobbies. (AR 49).

Heintz testified at the hearing that he has been helped by Vocational Rehab, but they have not found a job that he could do. (AR 51). Heintz testified that even if he had a job where he could sit or stand as he needed to relieve his pain, and where he did not have to lift anything, he still would not be able to work because he would not be able to focus due to lack of sleep. (AR 53-54). Heintz testified that he cannot sleep well due to his back pain and his sleep apnea, even though he uses a BiPAP machine. (AR 54). He stated that his medications have not helped with his pain or sleeping problems. (AR 54-55).[3]

C. Vocational Expert's Testimony at the Hearing

A vocational expert, Marie Nicole Kieffer ("the VE"), also testified at the hearing. (AR 59). The VE, after reviewing the records in the file related to Heintz's work history, answered a hypothetical question posed by the ALJ. (AR 60-62). The ALJ asked the VE to assume a hypothetical individual who is 42 years old, with a sixth grade education and Heintz's work history, who is limited to light work but can never climb; can only occasionally balance, stoop, kneel, crouch, or crawl; cannot operate hazardous moving machinery; cannot work at unprotected heights; and cannot be exposed to concentrated fumes, odors, dust, gases, or pulmonary irritants. (AR 60-61). The VE informed the ALJ that such a hypothetical person would not be able to perform any of Heintz's past work, but there would be jobs at the light or sedentary exertional levels that such an individual could perform, including the job of cashier (2, 500 regional jobs, 30, 000 state jobs, and one million national jobs), the job of an electrical accessories assembler (200 regional jobs, 2, 000 state jobs, and 100, 000 national jobs), or the job of a small products assembler (2, 000 regional jobs, 30, 000 state jobs, and 700, 000 national jobs). (AR 61-62). The ALJ then asked the VE to consider a hypothetical person of the same age, education, and past work experience, who had limitations consistent with the testimony presented at the hearing. (AR 62). The VE informed the ALJ that there would be no work for such a person, because of the necessity to switch freely between sitting and standing positions frequently, which would indicate an excessive amount of time off task. (AR 62).

Heintz's attorney also asked the VE questions at the hearing. Heintz's counsel asked the VE whether a 30-minute sit, five-minute stand rotation pattern would exceed the permitted amount of time off task, and the VE responded that such a pattern generally would not. (AR 62-63). When asked by Heintz's counsel whether, in addition to the 30-minute sit, five-minute stand rotation pattern, if an employer would also tolerate a six minute walk away from the work station each hour, the VE responded that an employer would not tolerate that accommodation because it would mean being off task more than ten percent of the workday. (AR 63). The VE explained that an employer will not tolerate an employee being absent two to three days per month consistently or 12 or more days per year. (AR 63). The VE explained that the typical break schedule consists of three breaks per day, one lasting 30 to 60 minutes for a lunch break and two breaks lasting five to 15 minutes each. (AR ...

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