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Bornkamp 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, Commissioner of Social Security, Defendant.


          Susan Collins, United States Magistrate Judge

         Plaintiff Suzette K. Bornkamp appeals to the Court from a final decision of the Commissioner of Social Security denying her application under the Social Security Act (the “Act”) for a period of disability and Disability Insurance Benefits (“DIB”).[1] (DE 1). For the following reasons, the Commissioner's decision will be AFFIRMED.


         Bornkamp has filed four separate applications for DIB, all alleging disability in the period of April to June 2009. (DE 9 Administrative Record (“AR”) 193-215). She filed her most recent application on July 19, 2013. (AR 209). The Commissioner denied Bornkamp's application initially and upon reconsideration, and Bornkamp requested an administrative hearing. (AR 90-116). On April 22, 2014, a hearing was conducted by Administrative Law Judge William D. Pierson (“the ALJ”), at which Bornkamp, who was represented by counsel, and a vocational expert, Marie Kieffer (“the VE”), testified. (AR 46-85).

         On May 27, 2014, the ALJ rendered an unfavorable decision to Bornkamp, concluding that she was not disabled because despite the limitations caused by her impairments, she could perform a significant number of light work jobs in the economy. (AR 18-35). The Appeals Council denied Bornkamp's request for review (AR 1-14), at which point the ALJ's decision became the final decision of the Commissioner. See 20 C.F.R. § 404.981.

         On December 23, 2014, Bornkamp filed a complaint with this Court, seeking relief from the Commissioner's final decision. (DE 1). Bornkamp advances four arguments in this appeal, asserting that the ALJ: (1) relied on flawed testimony by the VE concerning the number of jobs; (2) failed to properly consider her scoliosis when evaluating whether she met or equaled a musculoskeletal listing at step 3; (3) improperly discounted the credibility of her symptom testimony; and (4) improperly denied controlling weight to the opinion of her treating physicians.[2] (DE 14 at 6-16).


         A. Background

         At the time of the ALJ's decision, Bornkamp was 53 years old (AR 35, 233); had a high school education (AR 324); and had past work experience as a finisher, auto assembler, and molding press operator for an auto parts manufacturer (April 1984 to April 2009), as a security guard (September 2010 to September 2011), and as a prep cook for McDonald's (December 2012 to April 2013). (AR 69-70, 236, 324, 384). In her application, Bornkamp alleged disability due to bipolar disorder, scoliosis, and degenerative disc disease, together with various other physical impairments. (AR 247, 323).

         B. Bornkamp's Testimony at the Hearing

         At the hearing, Bornkamp testified that she is single and lives with her 83-year-old mother; she could no longer afford her own apartment, but she had health insurance. (AR 50-51, 68). She drives at least once a week for errands and had driven herself to the hearing. (AR 51). She has no difficulty performing her self care. (AR 64-65). In a typical day, she makes coffee, smokes, reads the paper, performs her self care, makes lunch, lies down and naps, makes dinner and dines with her mother, watches television, and does household chores such as washing dishes, vacuuming, and cleaning the bathrooms. (AR 62-64). She is able to bend over and reach for cleaning products kept under the sink. (AR 64). She performs yard work and uses a riding lawn mower to cut their three-and-a-half-acre lawn. (AR 66).

         Bornkamp stated that her lower back feels numb, is warm, and has “pins and needles” and sometimes stabbing sensations. (AR 65). The pain radiates into her low back and left hip when she walks, causing her steps to get shorter until she has to sit down. (AR 65). She has pins and needles from her knees to her feet when she lies down at night. (AR 65). She also has degenerative arthritis in her neck, causing her discomfort when holding her head to the left for an extended period. (AR 67). She was not taking any pain medication for her back or neck pain at the time, but an epidural injection in her neck had been helpful in the past. (AR 67-68). She estimated that she could stand for 15 minutes before needing to lean against something, walk one-third of a mile before needing to rest, and lift 10 pounds, but she could perform no pushing or pulling. (AR 60). She thought she could stand for 30 minutes total and walk for 30 minutes total in an eight-hour period. (AR 74). She stated that she quit her most recent job at McDonald's because she could not tolerate the required standing and reaching. (AR 72-73).

         As to her mental health, Bornkamp stated that she suffers from depression and cries frequently. (AR 61). Medication has helped to reduce her symptoms of sadness and anxiety, but she still has several bad days a month when she sleeps more and wants to be alone. (AR 61-62).

         C. Summary of the Medical Evidence

         Bornkamp has a history of hypertension and a myocardial infarction that occurred in April 2007.[4] (AR 469-517, 606-44).

         On June 15, 2009, Michael Arata, M.D., an orthopedic surgeon, performed a surgical spinal fusion and spinal decompression on Bornkamp due to progressive scoliosis and lumbar radiculitis of her left leg. (AR 668-87). She had been experiencing back pain and left leg discomfort that were aggravated by prolonged sitting, standing, and walking. (AR 673).

         On July 21, 2009, M. Brill, M.D., a state agency physician, reviewed Bornkamp's record and concluded that within 12 months of surgery, she could return to light duties and lift 10 pounds frequently; stand or walk for six hours in an eight-hour workday; sit for six hours in an eight-hour workday; and occasionally reach overhead with both arms, climb, balance, stoop, and kneel. (AR 700-07). Dr. Brill's opinion was affirmed in January 2010, by J.V. Corcoran, M.D., a state agency physician who also reviewed Bornkamp's record. (AR 760).

         In September 2009, Arata reported that Bornkamp was “doing better” and that her surgery had relieved a lot of her left hip pressure. (AR 718). She still had difficulty squatting, some tingling in her right upper leg, and a pulling sensation with lifting; she was taking Vicodin occasionally. (AR 718). Dr. Arata kept her off work. (AR 719).

         On December 11, 2009, Bornkamp reported some thoracolumbar pain and some low back discomfort to Dr. Arata, which he attributed to the fact that she had been fused down to L5 and only had one motion segment at ¶ 5-S1. (AR 1022). He suggested that she begin a physical therapy program. (AR 1022). He further stated: “Obviously, Ms. Bornkamp has significant, ongoing problems with her back and finding employment will be difficult, if not impossible in her situation.” (AR 1022). He assigned her the following permanent restrictions: no lifting floor to waist; no lifting with arms extended; no pushing, pulling, stooping, bending, squatting, kneeling, crawling, or climbing; and only occasional lifting waist to shoulder, lifting shoulder to overhead, and standing, walking, or balancing. (AR 1029).

         On December 31, 2009, Bornkamp visited John Wallace, M.D., her primary care physician, concerning her disability application. (AR 764). He opined in a letter that he agreed with the permanent restrictions assigned by Dr. Arata, adding that she could lift up to 15 pounds. (AR 764).

         On June 16, 2010, Bornkamp returned to Dr. Arata for a one-year followup, and he noted that she was “getting along remarkably well.” (AR 1023). She reported occasional low back pain and some mid-thoracic pain, which he presumed was at the junctional levels of her fusion, as well as some numbness and tingling down her back and legs. (AR 1023, 1031). She stated that she could not walk long distances. (AR 1031). Dr. Arata assessed that “[h]er symptoms . . . are not all that severe, and she is pleased and getting along well.” (1023). She was instructed to “watch lifting” but to perform activities as tolerated. (AR 1031). Her X-rays looked satisfactory, and Dr. Arata planned to continue to treat her conservatively, instructing her to call if any problems arose. (AR 1023). Bornkamp did not return to Dr. Arata until almost three years later-when she was applying for disability.

         In April 2011, H.M. Bacchus, Jr., M.D., examined Bornkamp in connection with her disability application. (AR 781-84). She moved rather slowly onto and off of the exam table and into and out of the chair. (AR 782). She had some tenderness to palpation and range of motion of her thoracolumbar and cervical spine. (AR 782). Her gait was steady and sustainable, although mildly antalgic and slightly favoring her left leg. (AR 782). She was able to walk on heels and toes, tandem walk, and squat one-half of the way down, but she hopped gingerly on her left. (AR 782). She had range of motion deficits in her neck, lower back, left upper extremity, knees, and left lower extremity, but no atrophy or spasm. (AR 782). Her muscle strength, tone, and grip strength were 4/5 in her left upper and lower extremities and 5/5 in her right upper and lower extremities. (AR 782). Dr. Bacchus opined that Bornkamp retained the physical functional capacity to perform light to moderate duties allowing for frequent position changes. (AR 783).

         In May 2011, M. Ruiz, M.D., a state agency physician, reviewed Bornkamp's record and concluded that she could lift 10 pounds frequently and 20 pounds occasionally; stand or walk six hours in an eight-hour workday; sit six hours in an eight-hour workday; perform unlimited pushing and pulling within the lifting restrictions; and balance, stoop, kneel, crouch, crawl, and climb ramps and stairs, but never climb ladders, ropes, or scaffolds. (AR 791-98).

         In September 2011, Bornkamp visited Dr. Wallace for evaluation of her depression, but she also reported that her low back pain had worsened. (AR 832). She stated that she had constant nerve pain that interfered with her sleep; she denied any increase in focal flares, limitations of motion, or stiffness. (AR 832). She was not taking any medications and had quit her job as a security guard three days earlier. (AR 832). Dr. Wallace assessed a depressive disorder and lumbago, and he prescribed Cymbalta. (AR 833).

         In May 2012, B.T. Onamusi, M.D., examined Bornkamp, stating that she presented with complaints of back pain related to scoliosis. (AR 856-57). He noted that she had not followed up with any doctors specifically for her back. (AR 856). She reported constant, mild pain with occasional aggravation to a moderate degree with physical activities or prolonged walking, sitting, or standing; radiation of pain with numbness, tingling, and weakness in her right leg; some trouble with balance due to her right leg weakness; and stress incontinence. (AR 856). Upon examination, she walked with a normal gait, could squat while holding on to the table, could stand on heels and toes, and had no difficulty transferring onto or off of the examination table. (AR 857). Grip strength was 60 pounds on the right and 65 pounds on the left. (AR 857). She was able to reach forward, push and pull with her upper extremities, and use her hands for fine coordination and manipulative tasks. (AR 857). A straight leg raise test was negative bilaterally, and she had no tenderness of her back. (AR 858). He assessed chronic lower back pain, status post surgery with instrumentation, and opined that she was “capable of engaging in light physical demand activities as defined in the Dictionary of Occupational Titles.” (AR 858).

         X-rays in June 2012 showed significant lumbar levoscoliotic curvature, multilevel degenerative disc space, and facet joint changes. (AR 879).

         Also in June 2012, A. Dobson, M.D., a state agency physician, reviewed Bornkamp's record and opined that she could lift 10 pounds frequently and 20 pounds occasionally; stand six hours in an eight-hour workday; sit six hours in an eight-hour workday; perform unlimited pushing and pulling within the lifting restrictions; balance, stoop, kneel, crouch, crawl, and climb ramps and stairs, but never climb ladders, ropes, or scaffolds; and must avoid concentrated exposure to wetness and hazards, such as machinery and heights. (AR 881-88).

         In April 2013, Bornkamp visited Dr. Wallace for complaints of back pain that had started a few days earlier but was a recurrent problem. (AR 929). She stated that she had bent over at home and again at work and had felt a pulling in her lower back. (AR 929). The pain had gradually worsened and was aggravated by sitting, bending, walking, or driving; she rated the pain as 5/10. (AR 929). She also complained of some tingling and numbness in her left leg. (AR 929). On physical exam, Bornkamp walked cautiously and stiffly, and she had tenderness to palpation over the right paraspinous area. (AR 929). She had decreased sensation in the lateral portion of her left lower leg; she was unable to walk on toes, and her heel walking was tender. (AR 929). A straight leg raise test was negative, and she demonstrated reduced range of motion in her back. (AR 929). Dr. Wallace prescribed medications. (AR 929).

         In June 2013, Bornkamp returned to Dr. Wallace for a one-week history of pain in her left shoulder. (AR 941). She rated her pain as 4/10 and stated that it was gradually improving; her symptoms were aggravated by activity. (AR 941). Upon examination, her left shoulder was tender anteriorly to palpation and with range of motion. (AR 942). She reported no tenderness with resisted elbow or forearm motions, and she could reach behind her head. (AR 942). Dr. Wallace recommended that she take ibuprofen. (AR 942).

         On July 3, 2013, Bornkamp returned to Dr. Arata, conveying that she had applied for disability. (AR 1024). It had been three years since her last visit. (AR 1024). He noted that her back looked good clinically, but she was continuing to have a lot of diffuse lower back pain and stiffness. (AR 1024). Her pain was associated with prolonged standing, sitting, and walking. (AR 1024). Dr. Arata wrote that he believed she was “very genuinely affected by the scoliosis” and that he would support her in her application for disability if requested. (AR 1024).

         On July 30, 2013, Bornkamp consulted with K. Rahn, M.D., an orthopedic surgeon, for complaints of neck pain. (AR 1025). She estimated that her worst pain was 2/10. (AR 1025). An MRI of her cervical spine showed multi-level stenosis, mild to moderate, and Dr. Rahn recommended that she receive an injection. (AR 1027-28, 1035). He stated that she had no restrictions. (AR 1032).

         In August 2013, Bornkamp consulted with G.D. Bojrab, M.D., concerning an injection for neck pain that was radiating to her shoulders. (AR 890-910). She described her pain as 2/10, noting that it increased with activity. (AR 890). She denied any back pain in her thoracic or lumbar spine, but reported pain on palpation of her cervical spine. (AR 890-91). She demonstrated good range of motion of her neck and 5/5 muscle strength. (AR 891). A straight leg raise test was negative bilaterally. (AR 891). The following month, Bornkamp reported that the injection had been somewhat helpful. (AR 1028).

         In October 2013, Dr. Onamusi examined Bornkamp for a second time. (AR 1059-62). She reported continued pain with limited motion in her spine. (AR 1059). Her gait was normal, and she was able to transfer onto and off of the exam table without difficulty. (AR 1060). She could squat, kneel, walk in tandem, and stand on heels and toes. (AR 1060). Her grip strength was 70 pounds on the right and 65 pounds on the left; she was able to reach forward, push, and pull with her upper extremities. (AR 1060). She had restricted range of motion in her back and mild tenderness involving the lower lumbar and sacral area. (AR 1060). A straight leg raise test was negative bilaterally. (AR 1060). Dr. Onamusi opined that Bornkamp was “capable of engaging in sedentary to light physical demand level activities as defined in the Dictionary of Occupational Titles.” (AR 1061).

         Records show that Bornkamp also received mental health treatment at Parkview Behavioral Health and Northeastern Center throughout the relevant period. (AR 518-36, 725-36, 775-80, 839-51, 894-923, 1070-84, 1110-21). She was prescribed psychotropic medications and participated in therapy on both an inpatient and outpatient basis. (AR 518-36, 725-36, 775-80, 839-51, 894-923, 1070-84, 1110-21).

         After the ALJ issued his decision on May 27, 2014, Bornkamp submitted to the Appeals Council a letter from Dr. Arata dated November 3, 2013, addressed “To Whom It May Concern.” (AR 5, 1122-24). In the letter, Dr. Arata noted that Bornkamp had presented in March 2009 with severe scoliosis measuring 65 degrees and severe lumbar spinal stenosis at ¶ 3-4 and L4-5, that she had undergone extensive spinal fusion and decompressive surgery, that she had made a “satisfactory recovery” from the surgery, and that she had been seen “periodically” thereafter. (AR 1123). He had most recently seen Bornkamp on July 3, 2013. (AR 1123). He articulated that her spinal fusion appeared to be solid, but that she complained of some diffuse stiffness in her back and pain with prolonged standing, sitting, or walking. (AR 1123). He believed that her back symptoms were “genuine and permanent.” (AR 1123). He opined that Bornkamp was “unable to physically work” because of her severe scoliosis and extensive spinal fusion and that she “should genuinely qualify for permanent physical disability” because of her spinal condition. (AR 1123).

         III. ...

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