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Miller v. Commissioner of Social Security

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

April 21, 2017

JAMES MILLER, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, sued as Nancy A. Berryhill, [1]Defendant.


          Susan Collins, United States Magistrate Judge

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


         Miller applied for DIB in February 2012, alleging disability as of August 8, 2011. (DE 9 Administrative Record (“AR”) 21, 162). Miller was last insured for DIB on December 31, 2015 (AR 23), and thus, 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 Miller's application initially and upon reconsideration. (AR 94-97, 104-06). After a timely request, a hearing was held on February 19, 2014, before Administrative Law Judge John H. Metz (“the ALJ”), at which Miller, who was represented by George W. Merkle, MPH, a non-attorney representative (AR 256); a vocational expert, Gail Corn (the “VE”); and two medical experts, Lee Fischer, M.D., and Jack Thomas, Ph.D., testified. (AR 41-88). On March 21, 2014, the ALJ rendered an unfavorable decision to Miller, concluding that he was not disabled because despite the limitations caused by his impairments, he could perform a significant number of light-exertional jobs in the economy. (AR 21-35). The Appeals Council denied Miller's request for review (AR 1-5), at which point the ALJ's decision became the final decision of the Commissioner. See 20 C.F.R. § 404.981.

         Miller filed a complaint with this Court on November 16, 2015, seeking relief from the Commissioner's decision. (DE 1). In doing so, Miller asserts that the ALJ erred in four ways: (1) by finding that he did not have a severe mental impairment at step two; (2) by failing to properly consider his obesity in combination with his other impairments; (3) by improperly discounting the credibility of his symptom testimony; and (4) by rejecting the opinion of Dr. Michael Emmons. (DE 13 at 11-25).


         At the time of the ALJ's decision, Miller was 48 years old (AR 35, 155); had a high school education and had completed a two-year certification from Ivy Tech College in automotive body work (AR 169); and possessed past relevant work experience as a construction worker, water line worker, machine maintenance worker, and delivery worker (AR 33, 170).

         A. Miller's Testimony at the Hearing

         At the hearing, Miller, who stated that he was six feet, five inches tall and weighed 250 pounds at the time, testified that he lives with his wife in a one-story home; his wife is employed, but works from home. (AR 45-46, 50, 63, 72-73). He is independent with his self care. (AR 75). His wife performs most of the household tasks, but he does help intermittently by fixing light snacks, washing dishes, and doing laundry; however, he must lie down and rest between tasks to help relieve his back pain. (AR 58-59, 70-72, 74). Miller drives a car several times a week and will run errands for his wife, but otherwise he pretty much stays home. (AR 48, 60-61, 72). He spends his time watching television or reading a book, alternating between sitting in a recliner and lying in bed to help relieve his back pain. (AR 61, 72). He smokes up to three packs of cigarettes a day, but he stopped consuming alcohol six or seven years earlier. (AR 62-63).

         When asked why he thought he could not work, Miller cited his back pain, stating that he could maybe work part-time, but that he “can't do it all day” because he needs to lie down every few hours, for a few hours. (AR 68, 76). Miller explained that he has undergone two surgical fusions in his upper spine and that his problem now is in his low back. (AR 66-69). His doctors told him that surgery will not help his low back problem and could even make it worse. (AR 66-69). He rated his back pain as a “four” on a 10-point scale. (AR 61-62). Walking on concrete is particularly painful. (AR 78). He received several spinal injections, but they helped only for a few days. (AR 67). He uses a TENS unit and an inversion table at home, and they provide him some temporary relief. (AR 67). He estimated that he could stand for an hour before needing to sit or lie down for an hour, could walk about one block, and could lift 10 pounds. (AR 56-57). In the last two years, he started using a cane “when it's slick out, ” which he thought was about two or three times a week; the cane was not prescribed by a doctor. (AR 46-47). On a bad day, he sometimes takes extra pain medication, but he tries not to because he then runs out of the medication at the end of the month. (AR 64). His medications make him feel “jittery” at times. (AR 56).

         Miller also complained of anxiety and depression, reporting that he takes Paxil as prescribed by his family physician. (AR 54, 75). He felt that his depression was associated with his physical problems, in that he gets angry and depressed because he feels that he cannot do anything anymore. (AR 75-76). Thus, his back pain increases his anxiety. (AR 72, 75). He denied any thoughts of harming himself or others, and he did not have hallucinations. (AR 55). He was not under the care of a psychiatrist or psychologist at the time, and he had never been hospitalized for his mental problems. (AR 54).

         B. Testimony of the Medical Experts

         Dr. Lee Fischer testified at the hearing as a medical expert concerning Miller's physical impairments. (AR 79-82). He identified Miller's physical impairments as chronic low-back pain, lumbar degenerative disc disease, chronic pain syndrome, thoracic spine degenerative disc disease, cervical degenerative disc disease, and chronic narcotic dependence. (AR 80). He opined that Miller's impairments did not meet or equal a listing, including Listing 1.04. (AR 80). He concluded that Miller could lift, carry, push, and pull 10 pounds frequently and 20 pounds occasionally; sit, stand, and walk for two hours at a time and six hours total in an eight-hour workday; bend, stoop, and climb stairs occasionally, but never crouch, drive, crawl, operate foot controls, or climb ladders, ropes, or scaffolds; and must avoid unprotected heights and wet or uneven surfaces. (AR 80-81). Dr. Fischer indicated that there was no documentation of record to support Miller's need for a cane, need to take rest breaks during the day, or need to elevate his feet. (AR 81-82).

         Dr. Jack Thomas testified at the hearing as a medical expert concerning Miller's mental impairments. (AR 82-83). He observed that Miller had been diagnosed with a major depressive disorder, single episode, mild, and had been assigned a Global Assessment of Functioning (“GAF”) score of 55.[4] (AR 83). He also noted that a psychiatric review technique by J. Gange, Ph.D., indicated that Miller's mental impairments were non-severe. (AR 83).

         C. Summary of the Relevant Medical Evidence

         From January 4, 2010, to February 20, 2013, Miller saw Michael Emmons, D.O., for more than 20 visits, largely for his thoracic and lumbar spine, anxiety, and depression. (AR 280-91, 303-33, 372-81, 386, 393-95, 400-08). Abnormal findings on exam included: tissue texture abnormalities over the upper thoracic spine on palpation (AR 331); tenderness of the thoracic and lumbar spine (AR 317, 320, 323, 326-27, 401, 405); right knee pain and swelling (AR 320, 323); abnormal gait (AR 317); restricted and painful range of motion of the spine (AR 318, 374, 377, 380, 401); positive Stork test (AR 318, 374, 377, 380, 405); and positive straight leg raise test (AR 318). Miller's weight increased during this time period. He weighed 226 pounds in January 2010, about a year prior to his alleged onset date, but his weight increased to 262 pounds by June 2012, with a BMI of 30.94. (AR 290, 380). In December 2012, Miller weighed 264 pounds and had a BMI of 31.17, and in February 2013, he weighed 267.2 pounds and had a BMI of 32.88. (AR 401, 407). Dr. Emmons's diagnoses included: anxiety disorder, not otherwise specified (“NOS”); cervicalgia; chronic pain; depression; hypertension; lumbar disc degeneration; muscle spasm; nonallopathic lesions of the lumbar and thoracic regions; opioid dependence in combination with another drug, with continuous use; prepatellar bursitis; somatic dysfunction of cervicothoracic and thoracic region; and thoracic strain. (AR 277-78, 280-91, 303-33, 372-81, 386, 393-95, 400-08). Dr. Emmons prescribed multiple medications for Miller's pain, anxiety, and depression and then saw him for medication management; Dr. Emmons also performed osteopathic manipulative treatments on Miller. (AR 280-91, 303-33, 372-81, 386, 393-95, 400-08).

         On February 26, 2010, Miller presented to the emergency room for chest pain and difficulty breathing. (AR 258-71). He was anxious, was wheezing, and had a productive cough. (AR 261). A chest X-ray and EKG were normal. (AR 265-70). He did not want any pain medication because he was taking other medications, and he left against medical advice. (AR 259, 261).

         On September 29, 2010, Miller saw Dr. Julius Silvidi, a neurosurgeon, for evaluation of his chronic back pain. (AR 299-300). A lumbar MRI confirmed a new small left paracentral disc herniation at the L2-L3 level. (AR 299). An examination was normal. (AR 300). Dr. Silvidi diagnosed chronic thoracic and lumbar back pain and new left L2-3 paracentral disc herniation. (AR 300). He advised against an L2-L3 discectomy, explaining that he did not anticipate that Miller would obtain any relief from surgery. (AR 299). Dr. Silvidi was uncertain of the etiology of Miller's back pain, and thus, he discussed further evaluation through CT scanning. (AR 299).

         On June 30, 2012, Miller underwent a physical examination by Dr. Kristina Jenner at the request of the state agency. (AR 339-43). Miller's posture and gait were normal. (AR 341). He could stand on heels and toes, squat, stand up from a squatted position, and get on and off the examination table without difficulty. (AR 341). A joint examination was normal; strength was 5/5 in all major muscle groups. (AR 341). Deep tendon reflexes were normal, and motor and sensory systems were intact. (AR 341). Grip strength and fine motor coordination were normal. (AR 341). Dr. Jenner stated that clinical evidence did not support the need for an ambulatory aid. (AR 341). ...

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