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Hemminger v. Colvin

United States District Court, N.D. Indiana, South Bend Division

September 16, 2016

SHIRLEY HEMMINGER, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security Administration, Defendant.

          OPINION AND ORDER

          JOHN E. MARTIN, MAGISTRATE JUDGE

         This matter is before the Court on a Complaint [DE 1], filed by Plaintiff on April 23, 2015, and on Plaintiff's Brief in Support of Reversing the Decision of the Commissioner of Social Security [DE 16], filed by Plaintiff on October 19, 2015. The Commissioner filed a response to Plaintiff's brief on February 1, 2016, and on February 11, 2016, Plaintiff filed a reply.

         I. Procedural Background

         In August 2013, Plaintiff applied for disability insurance benefits with the United States Social Security Administration (“SSA”), alleging that he had become disabled as of October 1, 2009. Plaintiff's claim was denied initially and on reconsideration. On November 6, 2014, Administrative Law Judge (“ALJ”) Romona Scales held a hearing at which Plaintiff, represented by counsel, and a vocational expert (“VE”) testified. On January 20, 2015, the ALJ issued a decision denying Plaintiff benefits on the ground that Plaintiff was not disabled.

         In the opinion, the ALJ made the following findings under the required five-step analysis:

1. The claimant did not engaged in substantial gainful activity from August 9, 2013, the application date, to the date of the hearing .
2. The claimant had the following severe impairments: degenerative joint disease/arthritis of the bilateral knees, status post bilateral knee surgery, a gallbladder disorder, and obesity.
3. The claimant did not have an impairment or combination of impairments that met or medically equaled any of the listed impairments in 20 CFR 404, Subpart P, Appendix 1.
4. The claimant had the residual functional capacity (“RFC”) to perform light work as defined in 20 CFR 416.967(b) except that the claimant could only occasionally climb ramps, stairs, ladders, ropes, and scaffolds, and she could occasionally balance, stoop, kneel, crouch, and crawl.
5. The claimant was capable of performing past relevant work as a dealer because it did not require performing work-related activities precluded by the claimant's RFC.
6. The claimant was not under a disability, as defined in the Social Security Act, since August 9, 2013, the date the application was filed.

         On March 2, 2015, the Appeals Council denied Plaintiff's request for review, leaving the ALJ's decision as the final decision of the Commissioner. On April 23, 2015, Plaintiff filed the underlying Complaint seeking reversal of the adverse SSA determination.

         The parties filed forms of consent to have this case assigned to a United States Magistrate Judge to conduct all further proceedings and to order the entry of a final judgment in this case. Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c) and 42 U.S.C. § 405(g).

         II. Facts

         On January 30, 2011, Plaintiff slipped and fell on a patch of ice, injuring her left knee. On November 21, 2012, Plaintiff reported pain in both knees, the right knee having been injured by another fall earlier that year. Plaintiff was treated for this knee pain, and that treatment included injections, aspirations, surgeries, physical therapy, and pain medications.

         In September 2011 and April 2013, Plaintiff was also diagnosed with lumbar and thoracic spine issues, including fractures and contusions. On April 13, 2012, Plaintiff visited an emergency room for injuries to her left ankle and right knee after yet another fall. From April 12 through April 14, 2013, Plaintiff was admitted to the hospital for injuries to her right wrist and her back, sustained after falling from a ladder. Plaintiff has also been diagnosed with obesity, chronic cholecystitis, acid reflux disease, mental health issues, and a hiatal hernia.

         On November 21, 2013, Dr. Brett Brechner, Plaintiff's primary care physician, examined Plaintiff based on her reports of bilateral knee pain and numbness. Dr. Brechner observed that Plaintiff had limited range of motion and tenderness in her knees. Dr. Brechner prescribed pain medication to increase Plaintiff's ability to perform daily activities. On November 3, 2014, Dr. Brechner opined that Plaintiff could walk up to one block without rest or severe pain, sit up to thirty minutes at a time, and stand with a cane ten minutes at a time. He also opined that Plaintiff could sit only two hours a day in an eight-hour workday, and that she could stand and walk only two hours in an eight-hour workday. Dr. Brechner further opined that Plaintiff would be limited to lifting and carrying lest than ten pounds, and that she could not twist, bend, squat, climb stairs, or climb ladders. Dr. Brechner estimated that Plaintiff would miss more than four days of work per month due to her limitations.

         Dr. Sherwin Ho, an orthopedic surgeon, treated Plaintiff for knee pain multiple times from January through August 2012. Dr. Ho noted that Plaintiff had limited range of motion, swelling, and tenderness in both knees, and grinding in her right knee. Dr. Ho diagnosed Plaintiff with arthritis in both knees and treated Plaintiff with steroid injections. On March 24, 2014, and November 3, 2014, Dr. Ho opined that Plaintiff could not walk without a cane and that she could not walk more than one block at a reasonable pace, could not walk on rough or uneven surfaces, could not use public transportation or carry out simple daily activities, and could not climb several ...


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