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Shallenberger v. Commissioner of Social Security

United States District Court, N.D. Indiana, Fort Wayne Division

September 23, 2016

COMMISSIONER OF SOCIAL SECURITY, sued as Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.


          Susan Collins, United States Magistrate Judge

         Plaintiff 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”).[1] (DE 1). For the following reasons, the Commissioner's decision will be AFFIRMED.


         Shallenberger 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).

         The 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.

         Shallenberger 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).


         At the 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).

         A. Shallenberger's Testimony at the Hearing

         At the 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).

         Shallenberger 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).

         Shallenberger 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).

         Shallenberger's 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).

         On June 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 180).

         C. Summary of the Relevant Medical Evidence Prior to December 31, 2009, the Last Date Shallenberger Was Insured for DIB

         In 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 213).

         On July 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).

         On 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).

         On 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).

         On 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).

         D. Summary of the Relevant Medical Evidence After Shallenberger's Date Last Insured

         A year 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).

         On 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).

         On 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).

         On May 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 co-morbidities, ...

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