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Hawkins v. Commissioner of Social Security Administration

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

March 30, 2017

COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, sued as Nancy A. Berryhill, Acting Commissioner of SSA, [1]Defendant.


          Susan Collins, United States Magistrate Judge.

         Plaintiff 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”).[2] (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.


         Hawkins 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).

         Hawkins 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).


         A. Background

         At the 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).

         B. Hawkins's Testimony at the Hearing

         At the 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).

         From 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).

         Hawkins 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 66-67).

         Hawkins 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).

         Hawkins's 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).

         Hawkins 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).

         Hawkins 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.” (AR 82).

         In 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).

         C. The VE's Testimony at the Hearing

         The VE 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).

         The ALJ 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).

         D. Summary of the Relevant Medical Evidence

         On 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).

         Hawkins 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).

         On 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 334).

         On 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).

         On May 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).

         On 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).

         Hawkins 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 ...

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