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Croft v. Commissioner of Social Security

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

November 18, 2016

DANIEL K. CROFT, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, sued as Carolyn W. Colvin, Acting Commissioner of SSA, Defendant.


          Susan Collins, United States Magistrate Judge.

         Plaintiff Daniel K. Croft 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 Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”).[1] (DE 1). For the following reasons, the Commissioner's decision will be AFFIRMED.


         Croft applied for DIB and SSI in August 2012, alleging disability as of July 25, 2012. (DE 9 Administrative Record (“AR”) 139-46). The Commissioner denied Croft's application initially and upon reconsideration. (AR 79-95). After a timely request, a hearing was held on December 18, 2013, before Administrative Law Judge Patricia Melvin (“the ALJ”), at which Croft, who was represented by counsel; his mother; and a vocational expert, Robert Barkhaus, Ph.D. (the “VE”), testified. (AR 36-74). On April 10, 2014, the ALJ rendered an unfavorable decision to Croft, concluding that he was not disabled because despite the limitations caused by his impairments, he could perform a significant number of unskilled, light jobs in the economy. (AR 20-29). The Appeals Council denied Croft's request for review (AR 1-16, 260-88), at which point the ALJ's decision became the final decision of the Commissioner. See 20 C.F.R. §§ 404.981, 416.1481.

         Croft filed a complaint with this Court on September 11, 2015, seeking relief from the Commissioner's final decision. (DE 1). Croft advances just one argument in this appeal-that the ALJ improperly discounted the credibility of his symptom testimony concerning his physical limitations. (DE 20 at 9-12).


         At the time of the ALJ's decision, Croft was 52 years old (AR 29, 139); had a ninth grade education (AR 180, 291); and possessed past work experience as a cable installer for satellite television, a maintenance worker, a materials handler, and a tow truck driver (AR 249). Croft stopped working in July 2012. (DE 179). He alleges disability due to lumbar spinal stenosis, lumbar spinal degenerative joint disease, lumbar spinal degenerative disc disease, trochanter bursitis, and post decompressive lumbar laminectomy and lumbar fusion. (DE 20 at 2).

         A. Croft's Testimony at the Hearing

         At the hearing, Croft, who was five feet, 10 inches tall and weighed 185 pounds, testified that he was divorced and had custody of his 12-year-old son. (AR 40). Croft was receiving food stamps and Medicaid benefits. (AR 41). When asked why he thought he could not work, Croft cited his right leg sciatica and constant lower back pain. (AR 47). He explained that his symptoms had started 20 years earlier, had worsened as he got older, and had in the previous year started to interfere with his ability to work. (AR 47). Croft testified that he had put off having back surgery for a long time, stating that his insurance would not cover a major surgery, he was fearful the surgery may not help, and he could not take a year off of work and still care for his son. (AR 58-59). However, just two months prior to the hearing, Croft underwent back surgery; he acknowledged that the surgery helped to reduce his back pain and sciatica. (AR 48, 50). Croft stated that his doctor anticipated that he would continue to experience further improvement as well. (AR 48, 50).

         Croft described his back pain on a 10-point scale as a “three” or “four” before surgery and a “two” since surgery. (AR 48). His pain worsens if he stands or walks too long, causing him to sit to relieve his symptoms; however, he stated that extended sitting bothers him as well. (AR 48, 50). Lying down and alternating between sitting and activity help to reduce his pain. (AR 50). Croft stated that he tried steroid injections and physical therapy prior to surgery, but they were unhelpful. (AR 49). Croft testified that he was taking medications for pain (Norco) and muscle spasms and that these medications had been helpful since surgery, but not before. (AR 49). He experienced no side effects from his medications, aside from constipation. (AR 49).

         Croft stated that he could stand for 20 minutes at a time since surgery and “hardly at all” before surgery. (AR 52). He estimated that he could sit for about an hour, but then has to move around. (AR 52). He was on a post-surgical three-pound lifting restriction at the time, but he could lift 10 pounds without pain prior to surgery. (AR 53). He has no problems pushing or pulling, climbing stairs, balancing, and fingering, but overhead reaching bothers him “a little bit.” (AR 53-54). He has some difficulty sleeping and wakes often throughout the night, but his sleep has improved since surgery; he lies down or sleeps one to two hours during the day. (AR 60-62). He performs his own self care, although since surgery his son has helped him to put his legs into his pants. (AR 54). He performs almost all of the household tasks (including doing dishes, cooking, laundry, making beds, vacuuming, cleaning the bathroom), but he sits down intermittently during tasks; he also cares for his son on a daily basis. (AR 52-53, 55-57, 62). Croft drives a car and shops for groceries, but his son takes out the garbage and does the yard work.[3] (AR 54-56).

         B. Summary of the Relevant Medical Evidence

         In March 2008, Croft visited Michael Arata, M.D., an orthopedic surgeon, concerning a 20-year history of low back discomfort that sometimes affected his legs and worsened with sitting, standing, or walking. (AR 342-43). He was working at Wayne Metal at the time. (AR 342). Physical exam findings were normal. (AR 342). X-rays showed some diffuse, fairly mild degenerative changes of the lumbar spine and mild retrolisthesis at ¶ 4-5. (AR 343). An MRI showed mild to moderate spinal stenosis at ¶ 3-4 and desiccated disks at ¶ 3-4 and L4-5, possibly L5 and S1. (AR 343). Dr. Arata diagnosed discogenic low back pain with associated mild to moderate L3-4 stenosis. (AR 343).

         In November 2008, Croft saw David Ringel, D.O., for his low back pain. (AR 306). He reported that he had received three spinal injections, but that only one had helped. (AR 306). Although Croft stated that his back pain had worsened, he was still working at the time and was not interested in undergoing surgery. (AR 306).

         In December 2008 and January 2009, Croft consulted Steven Hatch, M.D., a pain management specialist, for his low back pain. (AR 344-48). Dr. Hatch prescribed Vicodin and recommended that Croft receive additional spinal injections. (AR 348).

         Almost two years later, in December 2010, Croft returned to Dr. Ringel with complaints of back pain. (AR 305). He had started a new job and needed pain medication. (AR 305). On physical exam, Croft had bilateral lumbar back spasm, right lumbar pain, and right sciatic pain. (AR 305). Dr. Ringel prescribed Norco and Soma. (AR 305).

         In June 2011, Croft saw Dr. Ringel, reporting that Norco and Soma did help but that he still experienced some sharp pain. (AR 303). Croft did not want to undergo a surgical fusion. (AR 303). On physical exam, he had a back spasm bilaterally at T-4, pain at the right SI joint, and right sciatic pain; he could flex to 60 degrees, bend 20 degrees to the side, and walk on his toes. (AR 303). Dr. Ringel added Nubain to his medications. (AR 303).

         One year later, in June 2012, Croft returned to Dr. Ringel, reporting that there was no change in his back pain. (AR 299). Dr. Ringel noted bilateral lumbar spasm and severe pain in the right sciatic notch. (AR 299).

         In October 2012, Croft underwent a physical examination by H.M. Bacchus, Jr., M.D., at the request of Social Security. (AR 325-27). Croft stated that he had stopped working a few months earlier-on or about July 2012. (AR 325). Dr. Bacchus noted tenderness to palpitation and range of motion throughout the lumbrosacral spine and also pain in the right sciatic notch. (AR 326). A straight leg raising test was positive on the right but negative on the left. (AR 326). His gait was antalgic and favored his right lower leg, but was steady with fair sustainability. (AR 326). His tandem walk was slightly clumsy, and he had a poor hop, worse on the right that on the left; he could squat one-third of the way down. (AR 326). His muscle strength was normal, except that his right lower leg was 4/5. (AR 326). X-rays showed bone spurs at ¶ 3-4 and L5; decreased intervertebral disc space at ¶ 3-4, severe at ¶ 4-5, and almost a total loss at ¶ 5-S1; and bone bridging between L3-4 and L4-5, with the left worse than the right. (AR 326). In sum, X-rays showed degenerative joint disease (mild at ¶ 1, L2, left sacroiliac joint, and right hip; moderate at ¶ 3; and moderate to severe at ¶ 4 and L5) and degenerative disc disease (mild at ¶ 3-4 and moderately severe at ¶ 4-5 and L5-S1). (AR 326). Dr. Bacchus's impression was chronic low back pain with right sciatica, degenerative joint disease, degenerative disc disease, knee pain, depression (treated with medication), hypertension (treated with medication), ...

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