United States District Court, S.D. Indiana, Indianapolis Division
BERNARD J. LYONS, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
ENTRY ON JUDICIAL REVIEW
WALTON PRATT, JUDGE
Bernard J. Lyons (“Lyons”) requests judicial
review of the final decision of the Commissioner of the
Social Security Administration (the
“Commissioner”), denying his application for
Social Security Disability Insurance Benefits
(“DIB”) under Title II of the Social Security
Act, 42 U.S.C. § 423(d) (“the Act”). For the
following reasons, the Court reverses in part the final
decision of the Commissioner and remands this action for
March 14, 2013, Lyons filed an application for DIB, alleging
a disability onset date of January 1, 2006, due to lower back
pain, spinal stenosis, and poor leg circulation. (Filing
No. 8-2 at 17.) His claims were initially denied on
April 22, 2013, and again on reconsideration on July 25,
2013. Id. Lyons filed a written request for a
hearing on September 17, 2013. Id. On October 7,
2014, a video hearing was held before Administrative Law
Judge Roxanne Fuller (the “ALJ”) who presided
over the hearing from Falls Church, Virginia. Id.
Lyons was present in Indianapolis, Indiana and represented by
counsel, Stacy Burton Crider. Id. A vocational
expert, James J. Radke (the “VE”), also appeared
and testified at the hearing. Id. On December 18,
2014, the ALJ denied Lyons' application for SSI.
Id. Following this decision, Lyons requested review
by the Appeals Council on December 29, 2014. Id. at
13. On February 9, 2015, the Appeals Council denied
Lyons' request for review of the ALJ's decision,
thereby making the ALJ's decision the final decision of
the Commissioner for purposes of judicial review.
Id. at 2-4. On April 26, 2016, Lyons filed this
action for judicial review of the ALJ's decision pursuant
to 42 U.S.C. §§ 405(g) and 1383(c)(3). (Filing
was fifty-three (53) years old at the time of his alleged
onset date. He has a high school equivalent education and
more than thirty years of past relevant work experience as a
truck driver and union business representative. Lyons'
relevant medical evidence as set forth in the parties'
briefs is not disputed, therefore, the Court incorporates by
reference the factual and medical background detailed in the
parties' briefs (See Filing No. 10 and
Filing No. 11), but will articulate specific facts
as needed in the “Background” and
December 17, 2009, Lyons complained of lower back pain and
numbness in his hips. (Filing No. 8-8 at 85.) On
December 23, 2009, he underwent a magnetic resonance imaging
(“MRI”) scan of the lumbar spine. The MRI
revealed multilevel spondylosis and slight retrolisthesis of
L5 on S1. Id. at 76. It also showed some
Schmorl's nodal endplate degenerative changes and some
mildly increased signal within the anterior aspect of the
innerspace at ¶ 3-4. Id. The MRI also revealed
minor left lateral recess narrowing at ¶ 1-L2, as well
as a mild lateral recess narrowing at ¶ 2-L3.
Id. It further showed, among other things,
broad-based disc herniation with moderate right lateral
recess narrowing, moderately severe left lateral recess
narrowing and moderately severe central stenosis at ¶
3-L4, as well as severe facet arthritis, severe central
stenosis and severe bilateral lateral recess narrowing at
¶ 4-L5. Id. Lyons had a suspected annular tear
with resultant edema, rather than disc infection.
December 20, 2009, Lyons again complained of back spasms.
From October through December 2009, Lyons received care for
his lower back pain, neck pain, and hip numbness through
Kirkling Chiropractic. (Filing No. 8-10 at 79-85.)
To combat the pain, Lyons also took Norco prescribed by his
family physician for a few months in 2009. (Filing No.
8-2 at 42.) Lyons did not take pain medication during
2010 and there is no medical evidence that he suffered from
back pain in 2010. On December 28, 2010, three days prior to
the date last insured, Lyons complained of abdominal pain,
but not back pain. (Filing 8-8 at 27-28.) Upon examination,
Lyons was able to stand from a chair and climb onto an
examination table. Id. at 28. On January 31, 2011,
about a month after the date last insured, Lyons continued to
complain of abdominal pain, but not back pain. Id.
September 27, 2012, almost twenty-one months after the last
insured date, Lyons sought specialized care for radiating
back pain at IU Medical Group, asserting he suffered from
back pain for approximately five years. (Filing No. 8-7
at 17.) Upon examination, Shashank Dave, DO opined that
Lyons suffered from pain in limb, lumbar spinal stenosis,
neuropathic pain, musculoskeletal pain, and chronic pain
syndrome. Id. at 18. On September 20, 2013,
Franciscan Spine Center recommended a spinal surgery after
reviewing the 2009 lumbar MRI and examining Lyons.
(Filing No. 8-10 at 71.)
the ALJ hearing, on October 7, 2014, Lyons testified that he
suffered from severe back pain since 2005 and his condition
did not improve with surgery or spinal injections.
(Filing No. 8-2 at 35-38.) Lyons estimated that he
was unable to lie down for more than two hours, sit for
forty-five minutes, stand for fifteen minutes or walk for
more than twenty minutes without pain. Id. at 39.
Lyons also testified that he stopped working in 2005 because
of the excessive back pain and lower leg pains. Id.
at .35. He twice attempted to return to work as a truck
driver because he needed insurance coverage, but his back
pain prevented him from performing the job duties of climbing
the flatbed of semi-trucks and chaining down cargo.
Id. at 36, 42-43.
testified at the administrative hearing about Lyons' work
history and current capacity to work. The VE stated that
Lyons' past relevant work as a truck driver amounted to
medium, semi-skilled work and Lyons' past work as a union
business representative was sedentary as defined but
performed as light, skilled work. Id. at 46. The ALJ
presented to the VE a hypothetical individual of the same
age, education, and work experience as Lyons who could
perform light work as defined in the regulations, but limited
to occasional climbing of ramps, stairs, ladders, ropes, or
scaffolds; occasional balancing, stooping, crouching,
kneeling, and crawling; occasional exposure to moving
mechanical parts, operating a motor vehicle, and exposure to
unprotected heights. Id. at 47. The VE testified
that such an individual could not perform the truck driving
position but could perform the union representative as it is
normally performed and as Lyons performed it. Id.
The ALJ then adjusted the original hypothetical, limiting the
individual to sedentary work but with the same non-exertional
limitations. Id. The VE testified that such a person
could perform the union representative job as it is defined
in the Dictionary of Occupational Titles (“DOT”).
Id. The VE further testified that no job in the
economy could be sustained if the individual would be off
task twenty percent of the day or absent from work four times
a month. Id.
DISABILITY AND STANDARD OF REVIEW
the Act, a claimant may be entitled to DIB only after he
establishes that he is disabled. Disability is defined as the
“inability to engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous
period of not less than 12 months.” 42 U.S.C. §
423(d)(1)(A). In order to be found disabled, a claimant must
demonstrate that his physical or mental limitations prevent
him from doing not only his previous work but any other kind
of gainful employment which exists in the national economy,
considering his age, education, and work experience. 42
U.S.C. § 423(d)(2)(A).
Commissioner employs a five-step sequential analysis to
determine whether a claimant is disabled. At step one, if the
claimant is engaged in substantial gainful activity, he is
not disabled despite his medical condition and other factors.
20 C.F.R. § 416.920(a)(4)(i). At step two, if the
claimant does not have a “severe” impairment that
meets the durational requirement, he is not disabled. 20
C.F.R. § 416.920(a)(4)(ii). A severe impairment is one
that “significantly limits [a claimant's] physical
or mental ability to do basic work activities.” 20
C.F.R. § 404.1520(c). At step three, the Commissioner
determines whether the claimant's impairment or
combination of impairments meets or medically equals any
impairment that appears in the Listing of Impairments, 20
C.F.R. Part 404, Subpart P, Appendix 1, and whether the
impairment meets the twelve month duration requirement; if
so, the claimant is deemed disabled. 20 C.F.R. §
claimant's impairments do not meet or medically equal one
of the impairments on the Listing of Impairments, then his
residual functional capacity will be assessed and used for
the fourth and fifth steps. Residual functional capacity
(“RFC”) is the “maximum that a claimant can
still do despite his mental and physical limitations.”
Craft v. Astrue, 539 F.3d 668, 675-76 (7th Cir.
2008) (citing 20 C.F.R. § 404.1545(a)(1); SSR 96-8p). At
step four, if the claimant is able to perform his past
relevant work, he is not disabled. 20 C.F.R. §
416.920(a)(4)(iv). At the fifth and final step, it must be
determined whether the claimant can perform any other work in
the relevant economy, ...