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Weist v. Colvin

United States District Court, S.D. Indiana, Terre Haute Division

July 23, 2015

KAREN WEIST, Plaintiff,


LARRY J. McKINNEY, District Judge.

Plaintiff Karen Weist ("Weist") requests judicial review of the final decision of Defendant Carolyn W. Colvin, Acting Commissioner of Social Security (the "Commissioner"), which denied Weist's applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") benefits under titles II and XVI of the Social Security Act, 42 U.S.C. §§ 416, 423 & 1382c.

Weist argues that the Administrative Law Judge ("ALJ") improperly weighed the medical opinion evidence to determine that Weist does not require an assistive device to ambulate effectively under listing 1.04(C). 20 C.F.R. § Pt. 404, Subpt. P, App. 1. Weist also argues that the ALJ improperly discredited Weist's allegations of pain. The Commissioner denies that the ALJ erred in any way.



Weist first filed an application for DIB benefits on June 16, 2008, alleging an onset date of June 10, 2008. R. at 147. She also filed an application for SSI benefits on April 20, 2010. R. at 159. The Disability Determination Bureau denied Weist's disability claim on October 8, 2008, R. at 83, and again on December 3, 2008. R. at 88. Weist filed a request for reconsideration by an administrative law judge ("ALJ") on March 5, 2009. R. at 95.

On July 23, 2010, Weist appeared, with her attorney, and testified in a video hearing in Indianapolis, IN, before an ALJ presiding in Falls Church, VA. R. at 31. Also present for the hearing was a vocational expert ("VE"), who also testified. Id. On December 20, 2010, the ALJ denied Weist's applications. Id. On December 29, 2010, Weist requested review of the ALJ's decision by the Appeals Council, R. at 26, which was denied on May 24, 2011. R. at 1. Weist sought review in the United States District Court for the Southern District of Indiana, which vacated the ALJ's ruling and remanded to the ALJ for further proceedings. R. at 656.

The ALJ held another video hearing on October 30, 2013. R. at 543. Weist appeared and testified in Indianapolis, with her attorney, while the ALJ presided in Alexandria, VA. Id. VE Abbe May testified, as well as impartial medical expert, John W. Axline, M.D. ("Dr. Axline"). Id. On January 13, 2014, the ALJ again denied Weist's applications. R. at 562. Weist filed her new Complaint with the Court on May 14, 2014. Dkt. No. 1.


Weist was 47 years old at the time of the October 30, 2013, hearing before the ALJ, R. at 594, and had attained her GED. R. at 596.

With respect to her relevant work history, Weist testified that she worked as an order-filler at Wal-Mart from 1997 to 2005, which involved standing, walking, and lifting up to approximately 155 pounds with the help of equipment. R. at 592-93. She also worked for Sodexo Management from 2005-2006 at a bakery, which involved standing, walking, and lifting up to approximately 25 pounds. R. at 592.

At the time of the hearing, Weist testified that she used a cane every day. R. at 597. As to her other assistive devices, she did not use her rolling walker because she had tripped over it on a couple of occasions, and she did not use her motorized wheelchair because it had not worked in about two years and she could not afford to fix it. R. at 597-98.

Weist additionally claimed that she had been diagnosed with fibromyalgia, brain damage from getting hit by a car as a child, which caused frequent headaches, and carpel tunnel in her right hand. R. at 607-09. Weist suggested that her awkward use of her cane at a 2010 doctor's examination, which was discussed by Dr. Axline, resulted from the examining doctor's suggestion that she try using her left hand to operate the cane due to the carpal tunnel in her right hand. R. at 609.

Weist testified that she was not at the time of the hearing prescribed any medication for her back pain. R. at 600. She testified that she sometimes took aspirin for her headaches, but that the aspirin had no effect on her back pain. R. at 605. She claimed that most of the medication and treatments she had tried for her back in the past either did not work or had significant negative side effects, such as short term memory loss. R. at 606-07. She described the pain as "a basketball in my lower right part of my back. It's intense heat. My back feels really tight and tense most of the time so I lean forward to get my back to feel like it's more limber." R. at 601.

Weist lived alone at the time of the hearing and testified that she is able to complete some household tasks, such as laundry, sweeping, making the bed, and basic food preparation, with frequent breaks and other limitations. R. at 602. She explained that her laundry hamper is small, and sometimes she will take an outfit off and take it directly to the washer instead of bothering with the hamper at all. R. at 609. Her estranged husband does all of the exterior household chores, such as the mowing and weed eating. R. at 608. He also makes simple repairs to the house when needed. Id.


1. Treatment Records

Weist first complained of back pain to her then-primary care provider Emily S. Adams, M.D. ("Dr. Adams"), on April 10, 2007. R. at 339. Dr. Adams prescribed Naproxen and ordered x-rays. R. at 339-41. The x-rays, performed the same day, revealed an eighteen-degree lower thoracic dextoscoliosis, 20-degree lumbar levoscoliosis, and that Weist's right leg was nine millimeters longer than her left. R. at 343.

Weist first presented to orthopedic specialist Dr. Mark Stevens, M.D. ("Dr. Stevens"), on April 24, 2007, complaining of lower right sided back pain. R. at 480. She stated that sitting and standing increased her pain. Id. Dr. Stevens described Weist's gait and neurological examination as "normal." Id. He recognized her scoliosis and ordered more tests and a follow-up appointment. Id. Weist presented to Dr. Stevens again on May 24, 2007. R. at 481. She again complained of back pain. Id. He again noted that her gait, neurological exam, and strength were "normal" and noted that the tests revealed no obvious spondylolisthesis. Id. He stated that she could return to work, but prescribed an MRI and a corset. Id.

Weist presented to Melissa Willis, N.P. ("Nurse Willis"), on January 29, 2008, for chronic low back pain. R. at 419. Nurse Willis noted Weist's reports of pain, R. at 420, and conducted a physical examination, which described normal lumbar curve, "5/5" muscular strength, and full range of motion. R. at 421. Nurse Willis stated that she did not feel capable of opining on Weist's ability to work after one examination and referred her back to orthopedic specialist, Dr. Stevens. R. at 419.

On February 7, 2008, Dr. Stevens described the results of a June 2007, MRI that Weist received: "facet arthritis at L4-5 and L5-S1 with annular tear at 3-4." R. at 479. He recommended she get a facet block at 3-4. Id. On February 14, 2008, Dr. Stevens referred Weist to Dr. Ronald Miller, M.D. ("Dr. Miller"), to perform the cortisone injection in Weist's right lower lumbar facet joint arthropathy. R. at 309. Although the procedure was successful, id., Weist denied that this treatment provided any relief. R. at 354.

Weist presented to Brian Black, D.O. ("Dr. Black"), in May and June 2008. R. at 351. She stated to him that she has "constant and continuous pain" and cannot sit or stand for long period. Id. He observed "grossly normal gait" and prescribed Naproxen and Vicodin for her back pain. R. at 352. He recommended a formal consult with Clarian West Spine Group, who he understood performed an MRI in 2007. R. at 352. Dr. Black tried to refer Weist to Dr. Horn, but Dr. Horn denied Weist was a candidate for surgery and refused to see her. R. at 354.

On October 5, 2009, Weist first presented to Troy T. Quiz, M.D. ("Dr. Quiz"), who became Weist's treating physician. R. at 442. On that date, Dr. Quiz ...

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