United States District Court, N.D. Indiana, Fort Wayne Division
JOHN L. SHALLENBERGER, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, sued as Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.
OPINION AND ORDER
Collins, United States Magistrate Judge
John L. Shallenberger 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 a period
of disability and Disability Insurance Benefits
(“DIB”) and Supplemental Security Income
(“SSI”). (DE 1). For the following reasons, the
Commissioner's decision will be AFFIRMED.
applied for DIB and SSI in April 2011, alleging disability as
of December 31, 2006, which he later amended to December 31,
2009. (DE 12 Administrative Record (“AR”) 24,
134-46, 154). Shallenberger was last insured for DIB on
December 31, 2009 (AR 68), and thus, with respect to his DIB
claim, he must establish that he was disabled as of that
date. See Stevenson v. Chater, 105 F.3d 1151, 1154
(7th Cir. 1997) (explaining that with respect to a DIB claim,
a claimant must establish that he was disabled as of his date
last insured in order to recover DIB).
Commissioner denied Shallenberger's application initially
and upon reconsideration. (AR 71-78, 81-87). After a timely
request, a hearing was held on December 17, 2012, before
Administrative Law Judge Yvonne K. Stam (“the
ALJ”), at which Shallenberger, who was represented by
counsel, and a vocational expert, Sharon Ringenberg (the
“VE”), testified. (AR 40-66). On April 4, 2013,
the ALJ rendered an unfavorable decision to Shallenberger,
concluding that he was not disabled because despite the
limitations caused by his impairments, he could perform a
significant number of sedentary jobs in the economy. (AR
22-33). The Appeals Council denied Shallenberger's
request for review (AR 5-8), at which point the ALJ's
decision became the final decision of the Commissioner.
See 20 C.F.R. §§ 404.981, 416.1481.
filed a complaint with this Court on January 2, 2015, seeking
relief from the Commissioner's final decision. (DE 1). In
this appeal, Shallenberger argues that: (1) the ALJ
improperly discounted the credibility of his symptom
testimony; (2) the ALJ assigned a residual functional
capacity (“RFC”) that was not supported by
substantial evidence; and (3) the VE's testimony upon
which the ALJ relied at step five lacked a proper foundation.
(DE 18 at 12-18).
time of the ALJ's decision, Shallenberger was 49 years
old (AR 134); had obtained his GED and specialized training
in carpentry (AR 168); and had worked as a carpenter from
1996 to December 31, 2006 (AR 168).
Shallenberger's Testimony at the Hearing
hearing on December 7, 2012, Shallenberger testified that he
was living with his girlfriend and her two sons, ages 10 and
23. (AR 45). In a typical day, he gets up early, reads, takes
his dog out, goes for a short walk, and then reads or watches
television the rest of the day. (AR 55). He does some
household chores such as washing dishes, but he does not
vacuum due to cramping in his legs. (AR 53-54). He lies down
intermittently throughout the day due to leg cramps and to
reduce the swelling in his legs. (AR 62).
testified that he has light seizures twice a week that last
five to 10 minutes, after which he is “fine, ”
although he has a headache for an hour or two afterward. (AR
51-53). He more rarely-about once a month-has a seizure where
he wakes up on the floor; his recovery time after a
“lay down” seizure is 25 minutes to an hour. (AR
51). He was taking 1, 000 mg of Keppra twice daily for his
seizure problem at the time of the hearing, which he had been
on “for quite a while”; he had initially been on
a lower dosage of Keppra, but he was still having seizures,
so they increased his dosage. (AR 52). Sometimes his
medications make him feel nauseous. (AR 56). Shallenberger
stated that in 2009 he had difficulty obtaining his
medications because he could not afford them, so he started
going to the Matthew 25 Clinic, a free or low-cost clinic.
(AR 49). The Matthew 25 Clinic has tried to get him in to see
a neurologist, but the neurologist does not work through the
Clinic. (AR 53). Shallenberger lost his driver's license
in late 2009 after he was arrested for operating a vehicle
while intoxicated. (AR 48). He testified that when he was
eligible to get his license back after taking classes
subsequent to his arrest, his doctor asked him to not do so
because of his seizures. (AR 48). Shallenberger testified
that he also has problems with swelling in his hands and
legs, which can cause him difficulty moving his fingers and
ankles. (AR 57). He takes Lasix and several other medications
to reduce the tightness, which help, but also cause frequent
urination; he wears a compression stocking on his left leg.
(AR 57-58). The swelling in his legs increases with sitting,
so he lies down and elevates his legs above his head for 20
minutes, five times a day. (AR 58-59). Shallenberger
estimated that he could sit for 20 minutes before needing to
get up, stand for 10 minutes before needing to sit down, and
walk about a quarter of a mile. (AR 54). He estimated that he
could lift up to 15 pounds. (AR 54).
uses several inhalers to help his breathing. (AR 60). Smoke,
perfume, and hot weather all bother his breathing, and he
commented that his girlfriend's son smokes in the house.
(AR 60-61). He takes a nitroglycerin tablet once every few
days when he experiences angina; the nitroglycerin gives him
a headache lasting up to 20 minutes. (AR 61). B. Contacts
by Social Security on May 9, 2011, and June 10, 2011 On
May 9, 2011, Shallenberger told the Social Security
representative that he was having three or four seizures a
week, each lasting three to four minutes. (AR 179). He was no
longer seeing a neurologist for his seizures or going to the
hospital after a seizure due to his financial limitations.
(AR 179). He was taking 750 mg of Keppra twice daily at the
time. (AR 179). He could not afford the cost of 1, 000 mg of
Keppra twice daily, so his dosage had been reduced to 750 mg
twice daily, which is less expensive. (AR 179). He stated
that he no longer drives, but he was recently cleared by a
doctor to drive. (AR 179).
girlfriend's son then talked with the representative. (AR
179). He reported that Shallenberger was indeed driving at
the time and that he had no problems doing so. (AR 179). He
stated that Shallenberger's seizures were occurring once
a week, but that he had two or three in the same day. (AR
179). During a seizure, Shallenberger will sit unresponsive
for three or four minutes, but he does not convulse or become
incontinent. (AR 179). The seizures almost always occur at
night between 8:00 p.m. and 10:00 p.m.; he is usually tired
afterwards, so he sits on the couch for 30 minutes before
resuming activity. (AR 179).
10, 2011, the Social Security representative spoke with
Shallenberger's girlfriend. (AR 180). She reported that
three or four months earlier, Shallenberger was having
seizures just once a month, but they had since increased to
about three to four times a month. (AR 180). Each seizure
lasts about 10 minutes, with Shallenberger staring blankly;
he does not convulse. (AR 180). He is confused after a
seizure and requires 30 minutes to two hours to recover. (AR
Summary of the Relevant Medical Evidence Prior to December
31, 2009, the Last Date Shallenberger Was Insured for
2005, Shallenberger was hospitalized after experiencing chest
pain and some intermittent nausea. (AR 211). The physician
noted his history of coronary disease, that he had bypass
surgery and mitral valve replacement in 1998, that he had an
implantable defibrillator, and that he smoked cigarettes for
30 years and continued to do so. (AR 211). Upon discharge,
Shallenberger's diagnoses included chest pain, unstable
angina; coronary artery disease with ischemic cardiomyopathy,
stent placement, and angioplasty; cardiomyopathy with
ejection fraction of 30 percent; mitral valve replacement;
implantable cardiac defibrillator; history of cerebrovascular
accident; hypertension; COPD; and tobacco dependence. (AR
1, 2006, Shallenberger was hospitalized for chest pain. (AR
274-93). A cardiac catheterization revealed that only one of
his bypass grafts was patent; the native coronary arteries
had total occlusion of the distal left anterior descending,
distal circumflex and proximal right coronary artery. (AR
274). He was instructed to continue medical therapy with
adjustments to his medications. (AR 274-75). His discharge
diagnoses included recurrent angina pectoris, multi-vessel
coronary disease, ischemic cardiomyopathy, mitral valve
prosthesis, status post implantable
cardioverter-defibrillator implant, hyperlipidemia,
hypertension, chronic tobacco abuse, and chronic
anti-coagulation therapy for mechanical mitral valve
prosthesis. (AR 274).
February 21, 2007, Shallenberger was hospitalized with signs
of left arm cellulitis after being bitten by a cat. (AR
589-91). He experienced some difficulty with speech while
there, and a head CT scan revealed an abnormal appearance
with the left temporal lobe, which appeared to be vascular in
origin. (AR 590-91). His difficulty with speech, however,
completely resolved prior to discharge. (AR 351). Discharge
diagnoses included cellulitis, embolic cerebrovascular
accident, mitral valve replacement with inadequate
anticoagulation, cat bite, and hematoma formation requiring
repeat incision and drainage. (AR 351).
February 2, 2008, Shallenberger went to the emergency room
for palpitations of his chest and a transient loss of speech.
(AR 436). He was diagnosed with a transient ischemic attack.
(AR 436). He then underwent implantable
cardioverter-defibrillator replacement. (AR 453).
April 28, 2009, Shallenberger was hospitalized after
experiencing seizure-like activity at home and a fall. (AR
580-81). He appeared lethargic with post-seizure confusion.
(AR 580). A CT scan of the head revealed foci of old infarct
involving the lateral left temporal lobe, but no evidence of
acute process. (AR 580-81, 584).
Summary of the Relevant Medical Evidence After
Shallenberger's Date Last Insured
later, on April 19, 2010, Shallenberger was seen by Casey
Kroh, M.D., for follow up of hypertension, hyperlipidemia,
bypass grafting in 2003, defibrillator placement, and valve
replacement. (AR 672). He had run out of Keppra. (AR 672).
Dr. Kroh discussed with Shallenberger getting his
driver's license back, stating that he needed to go to a
state license branch to get that completed. (AR 672). On
November 24, 2010, Shallenberger returned to Dr. Kroh,
reporting angina and that his right hand was numb and cold;
Dr. Kroh reviewed his current medications. (AR 669).
February 21, 2011, Shallenberger presented to the emergency
room with complaints of left thigh pain and difficulty
walking. (AR 595-96). He had open wounds from recent flea
bites and scratching; the rash pattern was consistent with
cellulitis of the thigh. (AR 595-96). He was started on
intravenous antibiotics and hospitalized. (AR 596, 639-40).
His discharge diagnoses included extensive cellulitis of the
left thigh; acute kidney injury, prerenal; left ankle
ulceration; flea bites; history of mitral valve replacement;
coronary artery disease; hypertension; anemia; hyperglycemia;
and arthritis. (AR 639).
March 2, 2011, Shallenberger was seen for follow up by Leslie
Swartz-Williams, M.D., his primary care physician, after his
hospitalization for cellulitis. (AR 664-66). He continued to
have severe pain, tenderness, warmth, and drainage in his
left leg, but he stated that his symptoms were improving. (AR
664). He also reported fatigue, joint stiffness, lethargy,
malaise, and swollen glands. (AR 664). He had 3 pitting
edema of his left knee. (AR 665). Additionally, his left
elbow was red and swollen. (AR 665). His current treatment
included antibiotics as well as elevation and irrigation of
his left leg. (AR 664). Dr. Swartz-Williams's assessment
included cellulitis of the leg and olecranon bursitis. (AR
665). Shallenberger returned to Dr. Swartz-Williams several
times in March 2011, and he received a left elbow injection
for his bursitis due to continued elbow erythema and
tenderness. (AR 662-63).
19, 2011, Shallenberger complained to Dr. Swartz-Williams of
chest pain and seizures. (AR 747). Dr. Swartz-Williams
indicated that Shallenberger's seizures had been fairly
well controlled over the long term, but that recently they
had increased in frequency and had become poorly controlled.
(AR 747). Shallenberger reported that the seizures were
occurring nine times a week and included loss of
consciousness. (AR 747). Dr. Swartz-Williams increased his
Keppra dosage from 750 mg twice daily to 1, 000 twice daily.
(AR 738). As to his chest pain, Shallenberger reported that
he had been stable with his coronary artery disease symptoms,
but that recently he had been experiencing intermittent chest
pain at rest; he also complained of intermittent episodes of
moderate epigastric abdominal pain, which worsened with
eating. (AR 747). He had no limb pain, swelling, edema, or
difficulty walking, but reported intermittent mild dizziness
when getting up quickly. (AR 747-48). He was assessed with
chest pain, hypertension, seizure disorder, coronary artery
disease, nicotine dependence, and abdominal pain and
tenderness. (AR 749). Dr. Swartz-Williams opined that due to
his coronary artery disease and multiple other