United States District Court, N.D. Indiana, Fort Wayne Division
RAMONA D. HAWKINS, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, sued as Nancy A. Berryhill, Acting Commissioner of SSA, Defendant.
OPINION AND ORDER
Collins, United States Magistrate Judge.
Ramona D. Hawkins appeals to the district court from a final
decision of the Commissioner of Social Security
(“Commissioner”) denying her application under
the Social Security Act (the “Act”) for
Disability Insurance Benefits (“DIB”) and
Supplemental Security Income
(“SSI”). (See 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.
applied for DIB in August 2011, and she filed for SSI in
November 2013, initially alleging disability as of May 15,
2008 (DE 10 Administrative Record (“AR”) 21).
Hawkins later amended her alleged onset date to December 31,
2009. (AR 173). Hawkins's DIB claim was denied initially
on November 29, 2011, and was again denied upon
reconsideration on April 9, 2012. (AR 21, 97-99, 107).
Hawkins filed a request for a hearing before an
Administrative Law Judge (AR 110), at which point
Hawkins's SSI claim was associated with her DIB claim,
and both claims were escalated to the hearing level (AR 21).
Administrative Law Judge William Pierson (“the
ALJ”) held a hearing on August 22, 2013, at which
Hawkins was represented by counsel. (AR 42). On December 18,
2013, the ALJ issued an unfavorable decision, finding that
Hawkins was not disabled because she was capable of making a
successful adjustment to other work that existed in
significant numbers in the national economy. (AR 34-35).
Hawkins requested the Appeals Council review the ALJ's
decision (AR 16), and the Appeals Council denied her request,
making the ALJ's decision the final, appealable decision
of the Commissioner (AR 1-4).
filed a complaint with this Court on May 19, 2015, seeking
relief from the Commissioner's final decision. (DE 1). In
this appeal, Hawkins alleges that the ALJ erred by: (1)
improperly discounting the opinions of treating psychiatric
nurse Karen Lothamer and psychiatrist Larry Lambertson; (2)
improperly evaluating the opinion of Dr. Kenneth Bundza; (3)
improperly discounting the credibility of Hawkins's
symptom testimony; and (4) improperly finding that Hawkins
did not meet the durational requirements for a severe mental
impairment. (DE 19 at 10-16).
time of the ALJ's decision, Hawkins was 49 years old. (AR
47). She completed high school and has some college
education. (AR 50). Her employment history includes work as a
residential counselor working with the mentally ill, work as
a public assistance caseworker, work in group homes to assist
mentally handicapped individuals, work cleaning office
buildings, work as a medical records clerk, and some work
babysitting. (AR 51-62).
Hawkins's Testimony at the Hearing
hearing, Hawkins testified that she was single and lived
alone in a rental home, which she was able to pay for with
assistance from the township for her rent and utilities. (AR
48). Hawkins also gets food stamp benefits, but her
applications for Medicaid have been repeatedly denied. (AR
48-49). Most recently prior to the hearing, she had been
denied Medicaid in July 2013. (AR 49). Hawkins has no other
income. (AR 49). Hawkins is five feet, two inches tall and
weighs 230 pounds, although her weight fluctuates depending
on her medications and her pain level. (AR 47-48). She drives
an automatic car occasionally if she is not in pain, in order
to get to appointments if she cannot get anyone else to take
her. (AR 49-50).
1996 until 2000, Hawkins worked at the Fort Wayne State
Developmental Center as a residential counselor for mentally
ill individuals. (AR 51). As part of that job, she assisted
mentally ill clients with their daily living skills. (AR 51).
From 2000 to 2004, she worked as a public assistance
caseworker for the Allen County Division of Family Resources,
where she processed applications for public assistance,
Medicaid, food stamps, and Hoosier Health Wise. (AR 51).
After that, Hawkins worked part-time with ARC Easter Seals.
(AR 53). She also started cleaning office buildings part-time
with Enviro Clean and at Park Center in 2004. (AR 53-54). In
January 2005, Hawkins got a job working full-time as a
medical records clerk at Park Center. (AR 53-54). Hawkins
resigned from her job at Park Center in 2007 because she
wanted to go back to school, and her supervisor there would
not work with her school schedule. (AR 53-54). She did not
end up going back to school and instead obtained full-time
work at ARC. (AR 56). Her work with ARC continued until 2008,
when she was terminated. (AR 55-56). She was terminated by
ARC after her back surgery, because she was in so much pain
that she could no longer do the work. (AR 56-57). In 2009,
Hawkins was self employed as a babysitter, working three days
a week to take care of two infants. (AR 57-62). While her
taxes were originally filed showing income from babysitting
in 2010, that was due to an error by her tax preparer, and
her taxes have since been amended to show that she had no
income in 2010. (AR 61-62). Hawkins's counsel amended her
onset date at the hearing to the date suggested by Social
Security, December 31, 2009. (AR 62).
explained that her pain is what keeps her from working; her
pain is worst in her tail bone area, but she also has pain in
her shoulders and neck, the base of her head, and her thighs.
(AR 63). The pain in her tail bone is always there for the
most part, but it is aggravated by sitting. (AR 64). Her tail
bone pain ranges from a five or six to a 10 on a 10-point
scale, and she has gone to the emergency room due to the
pain. (AR 64). The pain in her shoulders occurs all day, but
gets worse at night. (AR 65). The pain in her shoulders
ranges from a three to a 10 on a 10-point scale, with the
worst pain occurring at night. (AR 65). While she has had
X-rays on her shoulder, her doctors have not been able to
find anything that is causing her pain. (AR 87). The pain in
her neck and head is a “nagging little pain” that
occurs “all day everyday, ” but which is not as
intense as the pain in her shoulder and back. (AR 65). The
pain in her neck and head ranges from a two to a five on a
10-point scale. (AR 66). Her neck and head pain had only
recently started, during the three months before the hearing,
and she had not talked to any of her doctors about her head
and neck pain. (AR 86-87). Hawkins's pain in her legs is
sharp, stabbing pain, which feels like a spasm. (AR 66). The
pain in her legs goes all the way down to her heels
sometimes, and her pain is aggravated by standing. (AR
explained that she has been on Vicodin and naproxen, and she
takes ibuprofen daily. (AR 67). The ibuprofen takes most of
the pressure off in her legs, but not her other areas of
pain. (AR 67-68). The Vicodin and naproxen make her drowsy.
(AR 68). Hawkins does not have a continuous prescription for
Vicodin; she only takes it when she goes to the emergency
room. (AR 68). The Matthew 25 clinic gives her naproxen,
which she takes twice a day. (AR 68-69). The naproxen that
she takes in the morning makes her drowsy about an hour after
she takes it, so she sleeps for at least two and a half
hours. (AR 69). Hawkins also uses a heating pad everyday to
help with the pain, and she uses icy hot mainly at night. (AR
70). Hawkins had surgery on her lower back, and she also went
to physical therapy for two to three months after surgery,
but the physical therapy did not help her. (AR 70). The TENS
unit that she used during physical therapy also did not help.
(AR 71). Hawkins was given a walker after her back surgery,
and she uses it about three times a week when her pain makes
it so that she cannot straighten up. (AR 89-90). Prior to the
surgery, Hawkins had some injections and nerve blocks; the
first one helped her a lot, but the second one did not help
at all. (AR 71-72). She also had two cortisone shots in each
shoulder after her surgery; the first set of shots in 2010
helped for about a year before the pain came back, but the
second set of shots did not help at all. (AR 72). The
shoulder injections were provided to her by the orthopedic
clinic through Matthew 25. (AR 85). After the first set of
shots, her shoulder pain completely went away, but it came
back in 2012. (AR 85-86).
severe pain causes her to have problems staying asleep, since
the pain wakes her up. (AR 72). She only sleeps between an
hour and 45 minutes to three and a half hours during the
night. (AR 73). Her lack of sleep causes her problems
functioning during the day because she is tired and
irritated. (AR 73-74).
estimated that the heaviest thing she could lift and carry
would be a gallon of milk. (AR 74). The longest she could
stand before she needed to change positions would be four to
six minutes. (AR 74). At that point, she would need to sit
down because of the pain in her legs. (AR 74-75). On a good
day, she has given herself a shower and has stood in the
kitchen to make a sandwich. (AR 75). On a good day, she has
walked a half a block; when she walks from the car to the
door of the grocery store, she starts hurting. (AR 75). On a
good day, she can sit for 30 to 35 minutes. (AR 76). Hawkins
has difficulty standing up again after she has been sitting;
she has to scoot to the edge of the chair, then rock herself
up, and then stand for 30 to 45 seconds before she starts
walking a little bit; after four or six minutes, she has to
sit back down. (AR 76-77). She does not have problems using
her fingers, but she cannot lift her arms above her head
because of her shoulders. (AR 77-78).
also has some mental health problems, which she is getting
treatment for at Park Center. (AR 78). Her problems include
her isolation, her nightmares, her depression, and her
post-traumatic stress disorder (“PTSD”). (AR 79).
Because of her depression, she does not go out unless she has
to; her friend makes her go out sometimes to try to get her
to do things like she used to do. (AR 79-80). She no longer
goes out dancing. (AR 81). Her depression began after her son
died in 1999, and it got worse after her back surgery. (AR
88). Hawkins only went to seek treatment for her depression
the year before the hearing; she delayed in seeking help
because she did not want to be on antidepressants anymore,
since they make her gain weight and make her tired; she
thought that she could handle it on her own. (AR 88-89). The
medication that Karen Lothamer prescribed for her has helped
with the severity of her nightmares. (AR 81). Her nightmares
started after a traumatic event in September 2012. (AR 81).
Hawkins believes that her mental health problems affect her
ability to work because she is very isolated, in a lot of
pain, and has a lot of sleep problems, so that there is
“no way [she] can function at a job effectively.”
discussing her daily activities, Hawkins talked about the day
before the hearing. (AR 82). She woke up at 4:30 in the
morning, and she just sat in bed and cried. (AR 82-83). Then
she went and made coffee at 5:00 or 5:15. (AR 83). She drank
a cup of coffee while sitting on her sofa and watching
television. (AR 83). She watched television for about two and
a half hours, during which time she was “up and
down” because she was hurting. (AR 83). Around 7:00 or
7:30, she fell asleep for about 45 minutes. (AR 83). She woke
up when her friend called her to check on her. (AR 83). After
the phone call, Hawkins went to her bedroom and laid down
because she was hurting, but she did not sleep. (AR 83). Then
she took her naproxen and laid in bed until 10:00. (AR 83).
After the naproxen kicked in, she slept until noon, after
which she lay in bed reading for about an hour. (AR 83).
After she stopped reading, she just laid in bed until about
4:00, when her friend came over. (AR 84). Hawkins did not
have anything to eat that day until her friend came over
because she was not hungry. (AR 84). Her friend made her some
fruit, which she ate even though she was not hungry. (AR 84).
Hawkins sat and talked with her friend until about 5:30 or
6:00, when her friend left. (AR 84). After that, she went
back to bed around 6:30 or 7:00, after having taken her
naproxen at about 5:30. (AR 84). Hawkins described the day
before the hearing as a “bad day.” (AR 85). She
usually has at least three bad days per week. (AR 85).
The VE's Testimony at the Hearing
testified that she had reviewed the record regarding
Hawkins's vocational background. (AR 91). She explained
that she would testify in line with the Dictionary of
Occupational Titles (“DOT”), and
that she would advise of any conflicts and the basis for any
opinion in conflict with the DOT. (AR 91). The VE
stated that based on the record and the testimony during the
hearing, Hawkins had past work as a teacher for the mentally
impaired, as an intake worker, as a group home worker, as a
janitor, as a medical records clerk, as an office manager,
and as a babysitter. (AR 92-94). The VE explained that
employers typically require employees to stay on task for 80%
to 85% of a workday, which takes into consideration customary
breaks (two 15-minute breaks and a half hour for lunch) as
well as an additional two to five minutes per hour, or 3% to
8% off task per hour. (AR 94). Employers typically tolerate
employees being absent between one and three days per month;
if an employee consistently missed three or more days a
month, that employee would not be able to maintain
competitive employment. (AR 94).
only asked the VE a couple of questions during the hearing
because there were some records that they were waiting on.
(AR 91). The ALJ then held the record open and directed the
VE to provide Hawkins's counsel with assistance if
requested. (AR 95).
Summary of the Relevant Medical Evidence
September 25, 2008, Hawkins was seen by Dr. Robert Shugart at
Fort Wayne Orthopaedics regarding a workers' compensation
claim. (AR 342). Hawkins complained of back pain and pain in
both her thighs, and she stated that her pain was due to an
injury she received while lifting a patient as part of her
job at ARC Easter Seals on May 2, 2008. (AR 342). Dr. Shugart
reviewed Hawkins's MRI, which showed a central disc at
¶ 5-S1, with some modic changes of degeneration. (AR
343). Dr. Shugart discussed surgical options with Hawkins,
specifically the possibility of a simpler discectomy instead
of a fusion. (AR 343). Dr. Shugart referred Hawkins for an
EMG. (AR 343).
returned to Fort Wayne Orthopaedics on December 2, 2008, for
an appointment Dr. Kevin Rahn. (AR 339-40). Dr. Rahn noted
that in Dr. Shugart's absence, he would be performing
Hawkins's surgery on the following Friday. (AR 339). On
December 23, 2008, Hawkins had a post-surgical followup
appointment at Fort Wayne Orthopaedics with Dr. Shugart, two
and a half weeks after her surgery. (AR 338). Hawkins
reported still having some left hip and thigh pain. (AR 338).
Dr. Shugart removed her staples, started her in physical
therapy, provided her with a temporary handicap parking
sticker for three months, and instructed her to return for a
followup appointment in four or five weeks. (AR 338). Dr.
Shugart told Hawkins that she could return to work on January
5, 2009, in a light duty capacity, with restrictions of
lifting no more than five pounds, no bending, and no
climbing. (AR 338).
April 14, 2009, Dr. Shugart saw Hawkins again for a final
followup appointment at four and a half months post-surgery.
(AR 334). He stated that “[s]he is better, ”
although she “still notices some left buttocks
pain.” (AR 334). Dr. Shugart noted that the X-rays
“show apparent good fusion, ” and that Hawkins
was at maximal medical improvement, although she had
“not really made significant progress.” (AR 334).
After a functional capacity evaluation, Dr. Shugart wrote
that Hawkins's restrictions were: “[o]ccasional
lifting 15 pounds, frequent lifting 10 pounds, frequent
bending, occasional climbing, occasional kneeling, frequent
squatting, sit-to-stand option 30 minute intervals with no
pushing or pulling over 15 pounds.” (AR 334). Dr.
Shugart stated that these were permanent restrictions. (AR
March 19, 2010, Hawkins underwent a sleep study at Parkview
Hospital's Sleep Disorders Center after being referred by
the Matthew 25 Clinic. (AR 501-03). The polysomnography
report was prepared by Dr. Jeffrey Walker on March 31, 2010,
who diagnosed Hawkins with mild obstructive sleep apnea
syndrome, with a respiratory disturbance index of eight
episodes per hour of sleep and oxygen desaturation down to
86%. (AR 499).
11, 2011, Hawkins was seen at the Matthew 25 Clinic for a
followup appointment. (AR 518). While her physician noted
that the sleep study had shown mild obstructive sleep apnea,
he noted that no CPAP was indicated, and he recommended that
Hawkins begin a weight loss regimen. (AR 518). On August 5,
2011, Hawkins returned to the Matthew 25 Clinic for
complaints of chronic shoulder pain, nicotine addiction, and
insomnia. (AR 514). Her nurse practitioner referred her for
physical therapy to help with her shoulder pain and also
prescribed naproxen. (AR 514). Regarding her nicotine
addiction, it was noted that Hawkins had stopped smoking as
of May 8th, and that she was completing her 12-week period of
Chantix, without any side effects. (AR 514). Hawkins was also
prescribed Amitriptyline for her insomnia. (AR 514).
September 7, 2011, Hawkins returned to the Matthew 25 Clinic
for complaints of shoulder pain. (AR 512). She received 80 mg
injections of Kenalog in her left shoulder. (AR 512). Hawkins
attended her next appointment at the Matthew 25 Clinic on
October 5, 2011, reporting complaints of mild obstructive
sleep apnea, insomnia, left shoulder pain, and excessive
fatigue. (AR 508). Her healthcare provider again noted that a
CPAP was not indicated for her sleep apnea. (AR 508).
Regarding her insomnia, her provider observed that the
Amitriptyline was not effective, so it was discontinued. (AR
508). Hawkins reported that she was taking a two-hour nap
during the day. (AR 508). As to her shoulder pain, her
provider noted that she had received the Kenalog injections,
and she had another appointment on October 13th. (AR 508).
Her physical exam that day was normal, although her provider
documented an abnormality regarding Hawkins's psychiatric
system. (AR 507).
underwent a myoview perfusion study at Parkview Hospital on
October 14, 2011, upon referral from the Matthew 25 Clinic.
(AR 372-94). Although the test was stopped due to
Hawkins's request, because she reported having chest
pain, the study physician, Dr. Ronald J. Landin, opined that
Hawkins's nuclear perfusion scan was normal in both