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Hurst v. Colvin

United States District Court, S.D. Indiana, Indianapolis Division

July 30, 2015

JAMES A. HURST, Plaintiff,


LARRY J. McKINNEY, District Judge.

Plaintiff James A. Hurst ("Hurst") requests judicial review of the final decision of Defendant Carolyn W. Colvin, Acting Commissioner of Social Security (the "Commissioner"), which denied Hurst's application for Disability Insurance Benefits ("DIB") benefits under Title II of the Social Security Act, 42 U.S.C. ยงยง 416 & 423.

Hurst argues that the administrative law judge ("ALJ") failed to adequately consider Hurst's extreme obesity, that the ALJ erred in his credibility determination, and that the ALJ made an error at step five in determining the jobs available to Hurst. The Commissioner denies that the ALJ erred in any way.



Hurst initially filed an application for DIB on December 2, 2011, alleging an onset date of February 25, 2011. R. at 133. His application was denied on March 7, 2012, and again upon reconsideration on May 23, 2012. R. at 57-58. On June 27, 2012, Hurst submitted a request for reconsideration by an ALJ. R. at 86. His request was granted on July 3, 2012. R. at 78.

A video hearing was held on March 13, 2013. R. at 31. Hurst appeared and testified in Indianapolis, Indiana, with his attorney, Michel L. Starkey ("Starkey"), present. Id. The ALJ presided in Falls Church, Virginia. Vocational expert, Barry Brown ("VE"), also appeared and testified by phone. Id. On April 11, 2013, the ALJ denied Hurst's application. R. at 10. On April 21, 2013, the Appeals Council denied Hurst's request for review of the ALJ's decision. R. at 5. Hurst filed this complaint with the Court on July 25, 2014. Dkt. No. 1, at 1.


Hurst was 46 years old at the time of the hearing and had a high school degree. R. at 32. Prior to his alleged onset date, Hurst's relevant work experience included work at a canning factory, followed by eleven years at a paper mill. R. at 45. At the canning factory, Hurst ran a machine that filled the cans and put the lid on top. Id. He was required to stand while doing this job, which usually required no heavy lifting, although he would occasionally help unload trucks. Id. At the paper mill, Hurst testified that he ran a press machine that made paper that was corrugated to make boxes. R. at 47. He also had to stand to do this job and would occasionally have to drag wet, heavy paper out from underneath the machinery, but not always. R. at 45-46. He estimated that this heavy lifting totaled up to 40-50 pounds at a time. R. at 47. Hurst stated that he left his job at the paper mill because back pain due to his weight made it difficult to get up every day. R. at 32-33.

Hurst testified at the hearing that he is 5'5" to 5'6" and weighs about 500 pounds. R. at 33. He was not sure of his exact weight because most doctor's scales only go up to 500 pounds. Id. The last time he was weighed exactly, his weight was "490-something." Id. Hurst's primary care physician, Eric Betts, M.D. ("Dr. Betts"), once sent him to another doctor to get treatment for his weight "years ago, " but Dr. Betts had not made any special efforts in the past two or three years to remedy Hurst's obesity. R. at 39-40. Hurst testified that Dr. Betts did continually encourage him to lose weight and Hurst claimed that he had tried to lose weight, but it usually resulted in him gaining weight. R. at 40. These efforts usually focused on a change in diet, which Hurst reported: "work[ed] for awhile, " but that he would eventually "fall off the wagon." Id. He testified that these were usually diets he tried on his own, not diets from a prescribed plan or book. Id.

As of the hearing, Hurst was prescribed to six medications for a variety of medical issues, including cholesterol regulation, high protein, diabetes, arthritis pain and inflammation, and depression. R. at 38-39. He testified that, overall, the medications helped "a little bit." R. at 39. He reported that he was "pretty much" able to take care of his personal needs himself, including bathing, dressing, and going to the bathroom. Id. He testified that he was unable to tie his own shoes or put on socks, so he wore slip-on shoes without socks. R. at 43. He stated that he does not smoke, but admitted to using chewing tobacco "constantly." R. at 39. About a year prior to the hearing, Hurst had a pulmonary function test performed because he was experiencing shortness of breath. R. at 40-41. The test found that Hurst had sleep apnea, for which he uses a CPAP machine every night. Id.

Hurst lived with his mother, who was home all of the time and who, according to Hurst, did most of the household chores. R. at 34. Hurst testified that he did no gardening, yard work, or mowing. R. at 35. He testified that he sometimes emptied his trashcans, which did not require that he bend over. R. at 42. He also sometimes cooked simple meals, but very rarely did dishes because it hurt his back to stand that long. R. at 36. If he did, he had to lean on the counter to alleviate the stress of his weight on his body. Id. He claimed that he could only stand an average of two or three minutes or walk maybe 50 or 100 feet before having to sit down due to back pain. R. at 41-42. Hurst claimed that even sitting could be uncomfortable because some chairs cut off circulation to his legs due to his weight. R. at 42. At home, Hurst preferred to sit on the edge of his bed. Id. Hurst could use the computer from this position, which he would only use for an hour or two at a time. R. at 43. Hurst testified that his computer use often included listening to music on YouTube, playing games, and reading the newspaper. R. at 35. He also watched TV in his bedroom, where he said he spent most of his time. R. at 34. In addition to these activities, he sometimes read books, helped his nephew with homework, and sat on the porch when it was nice outside. R. at 34-35.

Hurst testified that he had not driven in approximately four years, despite having a valid license, because he did not fit behind the wheel of his Blazer, which he consequently sold for the money. R. at 37. If he did any kind of shopping, it was online. R. at 37. If Hurst got out of the house, it was likely because his friend picked him up and took him back to his house to watch TV or to a drive-in movie. R. at 37. He was able to ride in other people's vehicles, although he sometimes was unable to use seatbelts because they were not big enough. R. at 43.


1. Treatment Records

Hurst first presented to Dr. Betts on August 25, 2008. R. at 219. Over the next month, Dr. Betts prescribed the following medications to Hurst: Tramadol and Naproxen for his back pain, Wellbutrin XL for his depression, a CPAP machine for his "severe" sleep apnea, and Metformin for his type-two diabetes. R. at 218-19. On April 25, 2011, Dr. Betts added Lisinopril for kidney health to Hurst's medication regime, R. at 229; and on July 19, 2011, he added Simvastatin for high cholesterol. R. at 228.

Hurst saw Dr. Betts regularly between 2008 and the hearing, during which time Dr. Betts and Hurst regularly discussed Hurst's back pain and his needing to lose weight, among his other health impairments. R. at 226, 231. Notably, on July 26, 2010, Dr. Betts noted that Hurst was not going to his diabetes classes as recommended, R. at 225; and, on October 17, 2011, Dr. Betts recorded that Hurst was not walking much. R. at 220.

On April 18, 2011, Dr. Betts ordered diagnostic imaging of Hurst's spine in response to complaints of neck pain and left arm numbness and tingling. R. at 230. The x-rays revealed the following: "There is a mild levoscoliosis. There are degenerative changes with narrowing of cervical interspaces. Of the C5-6 interspace appeared narrowed and there is hypertrophic end plate remodeling." Id. Dr. Betts concluded: "Definite arthritic changes to account for pain. Watch for now." Id.

On February 8, 2013, Dr. Betts submitted a medical source statement, which opined that Hurst could sit for two hours at a time, stand for 30 minutes, and walk for fifteen minutes without interruption. R. at 322. Dr. Betts further opined that Hurst could sit a total of seven hours in an eight hour day and stand or walk for one hour in an eight hour day. R. at 323. In terms of postural limitations, Dr. Betts opined that Hurst could never do any of the following: climb stairs and ramps, ladders or scaffolds, stoop, kneel, crouch, or crawl. R. at 324. Dr. Betts opined that Hurst cannot "walk a block at a reasonable pace on a rough or uneven surface." R. at 325. Dr. Betts advised against Hurst's exposure to the following: unprotected heights, moving mechanical parts, dust, odors, fumes, pulmonary irritants, and extreme heat. Id.

On January 9, 2012, Hurst presented to Kristin Perrone-McGovern, Ph.D., HSPP ("Dr. Perrone-McGovern"), for a psychological evaluation. R. at 235. Hurst explained to her that he had gained 100 pounds over the last four years and felt "very irritable" all day during that time. R. at 235. He reported feelings of hopelessness and low self-esteem. Id. He denied excessive worrying, panic attacks, manic symptoms, or suicidal or homicidal ideations. Id. Dr. Perrone-McGovern conducted a mental status examination and made the following observations:

Responses to the mental status examination indicated claimant was oriented times four and had intact immediate and autobiographical memory. Responses suggested mild impairment in recent and remote memory. Claimant's basic calculation abilities were intact. His ability to complete tasks requiring sustained attention was within normal limits. Responses suggested his abstract reasoning and judgment were largely intact.

R. at 238. She opined that Hurst was "likely to work at a slower than average pace." Id. She also opined that he "likely possesse[d] the skill to create and manage a budget." Id.

2. Social Security Administration Consultative Exams

On January 17, 2012, state medical consultant, Kari Kennedy, Psy.D. ("Dr. Kennedy"), opined after reviewing the record that Hurst's mental impairments were not severe. R. at 239. Dr. Kennedy identified these impairments as dysthymia, 242, and an eating disorder. R. at 246. She rated Hurst's restrictions of activities of daily living, his difficulties in maintaining social functioning, and his difficulties in maintaining concentration, persistence, or pace all as "[m]ild." R. at 249. She noted no episodes of decompensation. Id. On May 18, 2012, this assessment was affirmed by reviewing state medical consultant, Joelle J. Larsen, Ph.D. ("Dr. Larsen"). R. at 282.

On January 28, 2012, Hurst presented to state medical consultant, Kristina Jiner, M.D. ("Dr. Jiner"). R. at 253. Dr. Jiner noted Hurst's complaints of back pain, fatigue, and shortness of breath. Id. She observed that his "[l]ungs are clear to auscultation bilaterally without crackles, rhonchi, or wheezing." R. at 255. She was unable to perform an abdominal exam as Hurst was unable to lie supine on the exam table. Id. She noted that his neurologic signs and muscle strength and coordination were normal. R. at 255-56. She observed "1-2 pitting edema of bilateral ankles and dorsum of feet." R. at 255. She ...

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