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Curl v. Colvin

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

September 15, 2016

JODY S. CURL, Plaintiff,
v.
CAROLYN W. COLVIN Acting Commissioner of the Social Security Administration, Defendant.

          ENTRY ON JUDICIAL REVIEW

          LARRY J. McKINNEY, JUDGE United States District Court

         Plaintiff Jody S. Curl (“Curl”) requests judicial review of the final decision of Defendant Carolyn W. Colvin, Acting Commissioner of Social Security (the “Commissioner”), which denied Watts' 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. Curl asserts that the Administrative Law Judge (“ALJ”) erred when he (a) failed to properly address Curl's limitations in concentration, persistence or pace, or memory deficits in his hypothetical to the vocation expert (“VE”); (b) failed to give proper weight to Curl's treating physician's opinion; and (c) failed to provide a logical bridge between uncontradicted evidence of Curl's stress incontinence and her medically determinable impairments. The Commissioner contends that the ALJ properly accounted for any mental capacity limitations by including Curl's GED Reasoning Level in his hypothetical; he properly afforded little weight to Curl's treating physician's opinion regarding her use of cane; and that the ALJ properly determined that Curl's incontinence was not a severe impairment.

         I. BACKGROUND

         A. PROCEDURAL HISTORY

         On July 21, 2012, Curl filed her applications for DIB and SSI. R. at 136-44. Therein, she alleged that she became disabled on September 12, 2011, due to symptoms associated with depression, back surgery, arthritis, anxiety, an “over active bladder, ” hot flashes, bipolar disorder, chest pain, sleep apnea, and esophageal reflux disease. R. at 163. Curl's application was denied initially and upon reconsideration. R. at 73-76.

         Curl timely requested a hearing before an ALJ, which occurred on February 7, 2014, at which Curl appeared with an attorney and testified. R. at 32-72. A VE also testified. R. at 32-72.

         On March 27, 2014, the ALJ issued his decision in which he denied Curl's applications because she was able to perform jobs that existed in significant numbers in the national economy. R. at 11-26. On May 12, 2015, the Appeals Council denied Curl's request for review and the ALJ's decision became the final decision of the Commissioner. See 20 C.F.R. §§ 404.982, 416.1481.

         On July 8, 2015, Curl filed the instant appeal pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).

         B. AGE, EDUCATION, WORK HISTORY & CURL'S PERCEPTION OF HER IMPAIRMENTS

         Curl was forty years old at the time of the alleged onset date. She has a high school education. Curl has past relevant work as a tree trimmer, certified nurse assistant, and stock clerk. R. at 62-63. At the hearing, Curl testified that her back is her major limitation. R. at 43. She claimed that her pain in the two years prior to the hearing averaged a 9 without mediation on a 10-point scale; a 7 with medication. R. at 44.

         Curl also testified that her doctor prescribed a cane, which she was using at the time of the hearing, to address her complaints that, periodically, her right leg would go numb and give out. R. at 47. Curl stated that she could only stand for approximately five minutes and walk only two minutes without a cane. R. at 48. She claimed she could stand or walk with her cane for five minutes. Id. Curl stated that she could only sit for five minutes without pain. R. at 49.

         Curl testified that she experienced an injury at work, but did not receive Worker's Compensation for it. Id. Even though she had surgery on her back in 2006, she worked quite a bit in 2010 and 2011. R. at 50. Curl testified that she worked through the pain during that time out of necessity, but the pain has gotten so bad that she can no longer work through it. Id.; R. at 55. Upon questioning by her lawyer, she stated that she does not drive herself to appointments because if there is a bump in the rode, the sharp pains in her back can be paralyzing. R. at 56.

         Further, Curl stated that for the two years prior to the hearing, she was extremely depressed, the worst possible rating, with medication. R. at 51. Curl receives treatment of her depression from her primary care provider; she has never been to a mental health therapist. R. at 51-53.

         Curl testified that shortly before the hearing, she had an EGD because she had been complaining of gastrointestinal issues. R. at 36, 55. She claimed that she has had ulcers and adhesions that need to be removed every couple of years. R. at 55. Curl stated that she has stomach issues every three to four days, which causes her terrible pain for an hour to three hours. R. at 56.

         Curl also complained of chronic insomnia and testified that there are periods of as long as five days during which she cannot sleep, even with the help of medication. R. at 56.

         Curl testified that she lives with her two sons who do all the cleaning, cooking, laundry and other chores because she cannot do it because of her back pain. R. at 57. She stated that approximately four months prior to the hearing she had tried to go grocery shopping, but had to stop after five minutes because she could not go on because of pain. R. at 57.

         Curl also reported that she had carpal tunnel surgery on both wrists and has poor circulation in her hands, which makes it difficult for her to work with them consistently. R. at 57-58. Similarly, Curl testified that every couple of months her feet swell and she has to prop them up above her heart; this condition last several days up to a week. R. at 58. Curl also reported difficulty with an overactive bladder that causes her to use the restroom up to 50 times in an eight-hour period. R. at 58.

         Finally, Curl stated that her medication sometimes makes her sick to her stomach and she has reported the problem to her primary care physician. R. at 60.

         C. RELEVANT MEDICAL EVIDENCE

         1. Treatment Records

         On September 10, 2010, Curl sought treatment for legs that jerk at night and wake her from sleep. R. at 351. She reported having trouble with nodding off to sleep during the day and almost falling asleep while driving. Id. Further, her quality of sleep was poor. Id. At that time, Curl stated that she worked from 10:00 p.m. to 7:00 a.m., and wondered if the shift work was part of the problem. Id. She also reported suffering from stress incontinence. R. at 354. On examination, the nurse practitioner noted unremarkable results in all major areas, except depressive disorder, possible hypercholestrolium, and malaise and fatigue. R. at 353-54. The nurse practitioner recommended several tests. R. at 354.

         As a result of one of the tests, Curl started Lovastatin for high cholesterol. R. at 355.

         Also in follow up to her exam on September 10, 2010, on September 14, 2010, Curl presented for a pelvic examination, the majority of which was normal. R. at 358-62. She was diagnosed with stress incontinence and prescribed medication. R. at 360-61. See also R. at 372.

         Upon referral from the nurse practitioner, on or about October 12, 2010, Curl underwent a polysomnogram, which revealed a rare apnea, but was otherwise normal. R. at 290.

         On her follow up visit on November 3, 2010, with Dr. Joven, her primary care physician, Curl reported that she gets “antsy” while waiting at work, but her depression has improved. R. at 367. She reported continued difficulty with leg jerks and issues with her legs feeling as though they would give out at work. R. at 368. She was generally diagnosed with the following problems: hypercholesterolium; osteoarthritis; low back pain; anxiety; and depressive disorder. R. at 369. She was prescribed medication for all of her symptoms. R. at 369-70.

         On or about February 9, 2011, Curl reported to the hospital with severe abdominal pain consistent with previous issues with abdominal adhesions. R. at 439. She underwent an adhesiolysis to remove abdominal adhesions. R. at 439-40.

         On October 3, 2011, Curl reported to Dr. Joven that she was having difficulty laying down due to pain, rated at 7.5/10, which caused nausea; and pain in her lower abdomen. R. at 395. A physical examination showed limited range of motion in the back with flexion reduced to fifteen degrees with severe pain; inability to extend secondary to severe pain; and lateral side bends reduced to thirty degrees bilaterally with pain. R. at 395-96. No other abnormalities were notes. R. at 396. Dr. Joven prescribed Flexeril and Oxycodone for her low back pain, and a Toradal injection administered that day. Id. The doctor also ordered a lumbar spine x-ray. Id.

         On February 7, 2012, Curl was seen in the emergency room at Hancock Regional Hospital when she fell through a ceiling and was caught on a rafter. R. at 249. She was complaining of low back pain, and reported her history of same and multiple back surgeries. Id. Upon examination, the physician noted a hematoma and abrasion on the left flank area, with tenderness over the abrasion and over the lower lumbar spine and paraspinal areas. R. at 250. An X-ray of her lumbar spine, left knee and hip showed no acute problems. Id. Curl reported feeling much better after medication and her hematoma had not expanded since she had arrived in the emergency room; she was released for home care. R. at 250-51.

         On February 10, 2012, presented to Dr. Joven with low back pain. R. at 398. She reported that on February 7, 2012, she was in the attic and put her foot through the floor to the ceiling below. R. at 399. She was seen and treated at a hospital on that date. Id. Upon examination by Dr. Joven on February 10, 2012, he reported slightly diminished range of motion on flexion, extension, lateral side bends (especially toward the left), and ...


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