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Wells v. Commissioner of Social Security

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

March 28, 2017

KURT A. WELLS, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, sued as Nancy A. Berryhill, Acting Commissioner of SSA, [1] Defendant.

          OPINION AND ORDER

          Susan Collins, United States Magistrate Judge.

         Plaintiff Kurt A. Wells 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”).[2] (DE 1). For the following reasons, the Commissioner's decision will be REVERSED, and the case will be REMANDED to the Commissioner for further proceedings in accordance with this Opinion and Order.

         I. PROCEDURAL HISTORY

         Wells applied for DIB and SSI in August 2012, alleging disability as of April 13, 2012. (DE 8 Administrative Record (“AR”) 193-202). Wells was last insured for DIB on December 31, 2012 (AR 20, 220), 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 Wells's application initially and upon reconsideration. (AR 137-52). After a timely request, a hearing was held on November 8, 2013, before Administrative Law Judge Patricia Melvin (“the ALJ”), at which Wells, who appeared pro se; James Adams, Wells's case manager at the Bowen Center; and a vocational expert, Sharon Ringenberg (the “VE”), testified. (AR 39-86). On May 14, 2014, the ALJ rendered an unfavorable decision to Wells, concluding that he was not disabled because despite the limitations caused by his impairments, he could perform a significant number of unskilled jobs at all exertional levels in the economy. (AR 20-30).

         After the hearing, Wells retained counsel to represent him. (AR 20; DE 17 at 1). The Appeals Council denied Wells's request for review (AR 1-15), at which point the ALJ's decision became the final decision of the Commissioner. See 20 C.F.R. §§ 404.981, 416.1481.

         Wells filed a complaint with this Court on January 21, 2016, seeking relief from the Commissioner's final decision. (DE 1). Wells advances three arguments in this appeal: (1) that the ALJ improperly evaluated the opinion of Candace Lemke, a psychiatric nurse practitioner; (2) that the ALJ improperly discounted his symptom testimony; and (3) that the ALJ improperly weighed the opinions of Drs. Hill and Horton, the state agency psychologists. (DE 17 at 7-13).

         II. FACTUAL BACKGROUND[3]

         At the time of the ALJ's decision, Wells was 57 years old (AR 30, 193); had a GED and a real estate appraiser's license (AR 225); and possessed past relevant work experience as a real estate appraiser and an account manager (AR 225). He alleges disability due to generalized anxiety disorder with agoraphobia, specific phobia of needles, degenerative changes in the right knee, degenerative changes in the lumbar spine, degenerative disc disease mostly at ¶ 4-L5 level, and a degree of central canal stenosis in the lower lumbar region. (DE 17 at 2).

         A. Wells's Testimony at the Hearing

         At the hearing, Wells, who is six feet tall and weighed 275 pounds at the time, testified that he is divorced and lives alone in a subsidized apartment. (AR 46). He was on Medicaid and was receiving food stamps. (AR 48). He stated that he was a self-employed real estate appraiser for eight years, which was a full-time job; however, he had never actually worked full time because he always had jobs where he could go home if he had a panic attack. (AR 49). He is independent with his self care and performs all of the household tasks, including shopping, laundry, vacuuming, cleaning, and taking out the garbage. (AR 71-72). He has a driver's license and used to drive almost every day, but he no longer does so because he lost his car. (AR 71). In his spare time, he enjoys watching mysteries and documentaries on the computer. (AR 71).

         When asked why he thought he could not work, Wells indicated that his most severe problem is his phobia of injections. (AR 52). He stated that this phobia causes him to have up to a dozen panic attacks every day. (AR 52-54). Most of these attacks are minor, lasting just a few minutes, but some can last several hours. (AR 53). When he has an attack, he quickly becomes very hot and sweaty and then loses his breath, so he quickly finds a way to cool down, such as going to his car, which is his “safe zone, ” and running the air conditioning. (AR 53). He also has agoraphobia, stating that his “only safe place is at home.” (AR 57). He has panic attacks when leaving home; however, since being involved in therapy, he has done “pretty well” with riding the bus, as he has had to get off the bus only a few times due to panic attacks. (AR 57). He has no problems getting along with people but tries to avoid them by staying home; the only people he goes anywhere with are his sister, his mother, and his son. (AR 70-71).

         Wells was taking two anti-anxiety medications and was participating in counseling, in which he was learning coping skills. (AR 54-56). He indicated that this treatment is effective, but that even with his medications, he still has four to five panic attacks a day. (AR 55-56, 58, 61). He had never been to a hospital for a panic attack because hospitals present his “biggest fear”; he did, however, admit himself to St. Joe Behavioral Center for alcohol detoxification in 2002. (AR 56; see AR 378).

         As to his physical problems, Wells complained of sharp pain in his low back that radiates to his legs, which had started about six months earlier. (AR 62-63). The pain, which he rated as an “eight or a nine” on a 10-point scale, occurs when he walks or stands “too long” and goes away almost instantly when he sits down. (AR 63, 65-67). He estimated that he could walk up to 400 feet and stand for 15 minutes before needing to sit down; he has no pain when sitting and can sit indefinitely. (AR 67). He thought that he could lift 20 pounds, and he had no difficulty with reaching, gripping, handling, pushing or pulling with his arms, or climbing stairs; his balance, however, “has been bad” for the last 10 years, causing him to fall on a few occasions, so he uses a shower chair. (AR 68-69). He takes Naproxen and Tylenol for his back pain and denied any medication side effects. (AR 63-65). He stated that he has a “bad knee, ” but it does not keep him from working. (AR 67). He also complained of vision problems that affect his reading, but he still is able to use a computer. (AR 69).

         B. Testimony of Wells's Case Manager

         James Adams, Wells's case manager at the Bowen Center, also testified at the hearing. (AR 74-79). He had been treating Wells two to three times per week for the past seven months. (AR 76). He stated that Wells has made amazing progress, but that his phobia is so severe that on an outing to the Art Museum, he glanced at a picture of a flower that vaguely resembled a needle and he had a full panic attack. (AR 75-78). Adams estimated that he had witnessed Wells have a dozen severe panic attacks that lasted for several hours and caused him to shake; sometimes Wells has to lie on a tile floor in a public place during a panic attack because he needs to feel the cold. (AR 76-78). Adams stated that when they were working on desensitization therapy, Wells was having 10 to 12 panic attacks a day. (AR 77). When they first started therapy, Wells could not get on a bus by himself, but he has progressed enough to do so. (AR 77). It takes Wells one to two hours of preparation to be able to leave his home. (AR 78).

         C. Summary of the Relevant Medical Evidence Pertaining to Wells's Physical Health

         In September 2012, Wells underwent a physical examination by Dr. Venkata Kancherla at the request of the state agency. (AR 358-60). Wells claimed that his anxiety was so bad that he could not function. (AR 359). On exam, his far vision was blurry in the right eye and 20/60 in his left eye, and his near vision was 20/20 with glasses. (AR 359). His muscle strength and tone were normal, but he had some fine tremors in his hands. (AR 359). His gait was normal, and he was able to squat and walk on his heels and toes. (AR 359). He became anxious and was hyperventilating at times during the examination. (AR 359). Dr. Kancherla's impression was that it was a normal physical examination with normal gait and medication-controlled hypertension, except that Wells needed a ophthalmology evaluation and a psychiatric evaluation. (AR 360).

         That same month, Dr. J.V. Corcoran, a state agency physician, reviewed Wells's record and concluded that his physical impairments were not severe. (AR 91-92). Dr. M. Ruiz, another state agency physician, affirmed Dr. Corcoran's opinion in December 2012. (AR 116-17).

         In March 2013, Wells visited Dr. Robert Wilkins, his family practitioner, due to back pain. (AR 750-51). The pain occurred with motion and was relieved by medication and sitting, and it caused some limitation of his normal activity. (AR 750). He appeared to be in pain during the examination. (AR 751). Wells reported that his pain had worsened in the past few months because he had been walking more and using the bus system. (AR 750). He weighed 268 pounds at the time. (AR 750). A chair test was positive, but a straight leg raise test was negative; no muscle atrophy or tenderness was observed. (AR 751). Dr. Wilkins prescribed Naproxen. (AR 751). An X-ray of Wells's lumbar spine showed degenerative disc disease mostly at ¶ 4-L5, and bony landmarks suggested a degree of central canal stenosis in the lower lumbar region; there was no acute bone pathology. (AR 744-45).

         In July 2013, Wells returned to Dr. Wilkins for his back pain. (AR 748-49). Wells reported that his pain extended down both legs and that his thighs felt numb. (AR 748). Although Naproxen had helped previously, it was not currently helping. (AR 748). He stated that standing causes his back pain and that lifting and carrying his laundry increases his pain; Dr. Wilkins observed that his gait was stiff upon getting up. (AR 748-49). He weighed 286 pounds at the time. (AR 749). A chair test and a straight leg raise test were negative. (AR 749). Dr. Wilkins's impression was that Wells's back pain was mostly from arthritis of the facet joints. (AR 749).

         In September 2013, Wells returned to Dr. Wilkins for his back pain. (AR 746). He described his low back pain as “burning, ” stating that it caused some limitation of his activity. (AR 746). He appeared to be in pain and demonstrated a limping gait; he had no associated leg weakness. (AR 746-47). He weighed 291 pounds at the time. (AR 746). Dr. Wilkins prescribed Tramadol. (AR 747). An MRI of Wells's lumbar spine revealed a moderate bulge at ¶ 4-L5, and a mild bulge, mild facet arthropathy, and moderate foraminal narrowing at ¶ 5-S1. (AR 742-43).

         D. Summary of the Relevant Medical Evidence Pertaining to Wells's Mental Health

         In April 2012, Dr. Wilkins documented that Wells had a generalized anxiety disorder, described as moderate. (AR 332). Dr. Wilkins indicated that Wells's symptoms were worsening and that he had a lot of anxiety, but he was no longer having panic attacks. (AR 332). Dr. Wilkins stated that Wells's condition interferes with his daily functioning and impedes his concentration. (AR 332). Dr. Wilkins opined that Wells's anxiety and depression render him unable to work and not a good candidate for rehabilitation services. (AR 331).

         In September 2012, Wells underwent a mental status examination by Wayne Von Bargen, Ph.D., at the request of the state agency. (AR 362-64). Wells related his severe phobia of needles, stating that he had self-medicated for years by drinking alcohol or stealing his wife's medication. (AR 362). He indicated that his phobia had contributed to his divorce and his vocational difficulties. (AR 362). He had become increasingly anxious and reclusive over the years, but was not housebound. (AR 364). His affect was moderately anxious, but his verbalizations were logical, relevant, and coherent; his alertness and activity level were normal overall. (AR 362). Dr. Von Bargen opined that Wells's history and current presentation revealed an anxiety disorder, manifested by a specific fear of needles, panic attacks, and generalized anxiety, and likely a personality disorder with avoidant and obsessive-compulsive features. ...


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