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Dykes v. Colvin

United States District Court, S.D. Indiana, Indianapolis Division

January 3, 2017

JAMES R. DYKES, Plaintiff,
v.
CAROLYN W. COLVIN Acting Commissioner of the Social Security Administration, Defendant.

          ENTRY ON JUDICIAL REVIEW

          LARRY J. McKINNEY, JUDGE

         Plaintiff James R. Dykes (“Dykes”) requests judicial review of the final decision of Defendant Carolyn W. Colvin, Acting Commissioner of the Social Security Administration (the “Commissioner”), which denied Dykes' applications for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) benefits under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 416, 423 & 1382(c). Dykes asserts that (1) the ALJ failed to give proper weight to the opinions of Dykes' treating physicians and (2) the ALJ's residual functional capacity assessment was improper. The Commissioner contends that substantial evidence supports the ALJ's findings and that the ALJ adequately explained his reasoning for finding that Dykes was not disabled.

         I. BACKGROUND

         A. PROCEDURAL HISTORY

         Dykes filed his applications for DIB and SSI on April 19, 2010, alleging that his disability began on February 1, 2010. R. at 149, 156. The claim was denied initially on July 2, 2010, R. at 65, and upon reconsideration on August 18, 2010. R. at 80. Dykes timely requested a hearing before the ALJ on August 26, 2010. R. at 94-95.

         On July 20, 2011, the ALJ held a hearing, at which Dykes, who was represented by counsel, and a vocational expert testified. R. at 26-60. On September 23, 2011, the ALJ found that Dykes was not disabled. R. at 9-25. The Appeals Council denied Dykes' request for review on February 27, 2012. R. at 1-4. On March 23, 2012, Dykes filed a complaint in the United States District Court for the Southern District of Indiana, Cause No. 1:12-cv-00370-MJD-RLY, and the District Court remanded the matter to the Commissioner on January 8, 2013. R. at 491-513.

         The ALJ held hearings on May 2, 2014, and October 7, 2014, R. at 443-490, and issued a decision on January 8, 2015, finding that Dykes was not disabled. R. at 410-433. Dykes made a timely request for review for the Appeals Council, and the Appeals Council denied Dykes' request for review on August 4, 2015, rendering the ALJ's decision the final decision of the Commissioner. R. at 404-406.

         On October 7, 2015, Dykes filed the instant appeal pursuant to 42 U.S.C. § 405(g).

         B. AGE, EDUCATION, WORK HISTORY & DYKES' PERCEPTION OF HIS IMPAIRMENTS

         Dykes was forty-four years old at the time of the alleged onset date. He has a high school education. Dykes has past relevant work experience as a produce department manager, a hospital foods services dietary cook, and a grill cook. R. at 188-191, 460-461. At the hearings on May 2, 2014, and October 7, 2014, Dykes testified that he stopped working because of knee, shoulder, and back pain. R. at 457-458. Dykes stated that he has since had surgeries in both of his knees and in his right shoulder that resolved most of the problems he had in those areas. R. at 458, 476. He further testified that his back pain continues to keep him from working. R. at 458-459. He indicated that problems with his spine cause him difficulty bending and lifting. R. at 477. Dykes had surgery to implant a spinal cord stimulator to manage his back pain and stated that his doctors also recommended he get a pain pump implanted to further relieve his back pain. R. at 458. Dykes stated that he is also taking Hydrocodone to manage his back pain. Id.

         Dykes testified that can stand for “maybe 20 minutes” before needing to sit down and can walk only two blocks at a time. R. at 459. He indicated that he can sit for only thirty minutes at a time and has problems bending and lifting. R. at 459, 477. Dykes stated that he often has to elevate his legs as a result of restless leg syndrome. R. at 477-478. Dykes further indicated that he can push a grocery cart but cannot pull much of anything for fear of tearing a tendon in his shoulder. R. at 480. He also stated that his surgeon advised that he should not lift more than twenty pounds. R. at 480-481. Dykes testified that has to lie down and rest for up to six hours during the day. R. at 485. He further stated that he spends most of his time in bed because of his physical condition and cannot get out of bed to get dressed three days per week. R. at 459-460.

         Dykes testified that he had two strokes within three days of each other that causes problems with his short term memory and concentration. R. at 278-279, 482. He stated that he was hospitalized for over a week after his second stroke, which caused hemorrhaging. R. at 482-483. He also stated that he has problems with his speech as a result of his strokes. R. at 481. Dykes further indicated that he cannot concentrate on any task for more than two hours at a time. R. at 460. He testified that he sometimes gets lost when traveling around his community and that his fiancée tends to manage his affairs. R. at 480, 485.

         In addition to his physical ailments, Dykes testified that he has problems with depression, for which he sought treatment at Meridian Health Services. R. at 479. He also stated that he took Cymbalta to treat his depression for a year and then switched to Wellburtrin XL. R. at 479, 484. He further indicated that he has problems sleeping and sometimes has suicidal thoughts. R. at 479-480.

         C. RELEVANT MEDICAL EVIDENCE

         1. Treatment Records

         a. Physical Treatment Records

         Dykes complained of knee and shoulder pain to Daniel Palmer, M.D. (“Dr. Palmer”), on July 29, 2010. R. at 1102. An x-ray of Dykes' lumbar spine ordered by Dr. Palmer and taken on January 19, 2011, also showed that Dykes had mild diffuse degenerative change, which caused him back pain. R. at 1040.

         On February 15, 2011, orthopedist Damion M. Harris, M.D. (“Dr. Harris”), examined Dykes and noted pain with limited range of motion in Dykes' left knee and right shoulder, and full range of motion without difficulty in Dykes' left hip, foot, and ankle. R. at 952-53. Dr. Harris further noted that an MRI revealed a nearly torn anterior cruciate ligament in Dykes' left knee and torn supraspinatus, infraspinatus, and bicep tendons in Dykes' right shoulder. R. at 953. The torn tendons in Dykes' right shoulder were surgically repaired by Dr. Harris on March 7, 2011. R. at 322.

         Primary care physician Darla Palmer, M.D., [1] also completed a check-mark form on March 24, 2011, which indicated that Dykes could rarely lift ten pounds; could never lift more than ten pounds; could stand and/or walk for less than one hour per eight-hour workday; could sit for less than two hours per eight-hour workday; had limited use of his upper extremities and of both hands; and could never be exposed to dust, fumes, gas, temperature changes, or humidity. R. at 362-364.

         On May 23, 2011, Dykes was admitted to St. Vincent Hospital for a possible stroke. R. at 366. However, by the time he arrived at the hospital, his symptoms had “improved drastically, ” and a neurological exam performed by Michael Sermersheim, M.D. (“Dr. Sermersheim”) on Dykes appeared normal. Id. Dr. Sermersheim started Dykes on an aspirin regimen and indicated that Dykes' prognosis was good. R. at 367. Several days later, on May 27, 2011, Dykes returned to St. Vincent Hospital after suffering a subarachnoid hemorrhage. R. at 373-374.

         An MRI of Dykes' back conducted on June 3, 2011, showed that Dykes also had a disc bulge at ¶ 5-S1, a disc protrusion at ¶ 1-2, and some mild degenerative changes. R. at 359-60. On June 9, 2011, Dr. Harris noted that Dykes' recovery from shoulder surgery was slowed by his strokes, but that Dykes nonetheless reported improvement in his shoulder pain. R. at 379. Dr. Harris further noted that Dykes' shoulder felt much better than it had prior to surgery and measured full strength in Dykes' right shoulder on August 4, 2011. Id.

         On October 11, 2011, Dykes reported to Dr. Harris that he was happy with his right shoulder surgery and would like to have surgery on his left knee. R. at 961. Dykes underwent left knee replacement surgery on November 2, 2011. R. at 966, 989. Six weeks after his knee replacement surgery, Dr. Harris reported that Dykes was doing even better than expected. R. at 970.

         On August 13, 2012, Dr. Palmer took an MRI of Dykes' right knee, which showed a tear in the medial meniscus and mild degenerative changes. R. at 1072. Another MRI taken on August 21, 2012, revealed some degenerative changes in Dykes' lumbar spine. R. at 1077.

         On September 6, 2012, orthopedic surgeon Ravishankar Vedantam, M.D. (“Dr. Vedantam”), noted that Dykes had degenerative spondylosis, but had no significant signs of lumbar radiculopathy. R. at 769. Dr. Vedantam recommended non-surgical treatment and indicated that Dykes had never attended physical therapy for his back pain. Id. Dr. Vedantam referred Dykes to physical therapy and encouraged him to do low impact, aerobic exercises, such as walking, swimming, and bicycling. Id. Dr. Vendantam indicated that Dykes could wear a lumbosacral belt when doing physical work and could use a heating pad as needed. Id.

         Dr. Sermersheim noted that Dykes reported having severe back pain and recorded weakness in both of Dykes' legs and a positive straight leg raise test during an examination on September 11, 2012. R. at 1115-1116. On November 13, 2012, Dr. Sermersheim noted that Dykes had normal short-term recall and alertness, as well as some leg weakness, normal cranial nerve and cerebellar examinations, normal sensation, and a limp. R. at 779.

         Dykes underwent a right knee arthroscopy on December 12, 2012, to resolve pain stemming from a fall that occurred in May or June 2012. R. at 973, 992. Two weeks after the procedure, Dykes reported occasional, moderate pain in his right knee but indicated that he was improving. R. at 974. On January 22, 2013, Dr. Harris stated that Dykes' right knee was “doing much better than prior to surgery.” R. at 978.

         An MRI of Dykes' lumbar spine taken on January 24, 2013, revealed mild diffuse thoracolumbar spondylosis. R. at 1081. Neurosurgeon Julius A. Silvidi, M.D. (“Dr. Silvidi”), evaluated Dykes on January 31, 2013, and noted that Dykes exhibited no signs of lumbar radiculopathy. R. at 775. Dr. Silvidi did not recommend surgery, but did suggest that Dykes might obtain an evaluation for a spinal cord stimulator. Id.

         Dykes presented to Dr. Sermersheim on February 5, 2013. R. at 783. Dr. Sermersheim noted Dykes' motor and sensory exams appeared normal, but that Dykes had an antalgic gait and walked with a cane. Id. Dr. Sermersheim also indicated that ...


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