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Hudnall v. Commissioner of Social Security

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

August 9, 2017

ROY M. HUDNALL, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, sued as Nancy A. Berryhill, Acting Commissioner of SSA, [1]Defendant.


          Susan Collins, United States Magistrate Judge

         Plaintiff Roy M. Hudnall 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 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.


         Hudnall applied for SSI in September 2007, alleging disability as of January 27, 2007. (DE 12 Administrative Record (“AR”) 13, 190-93). SSI is not payable prior to the month following the month in which the application was filed. 20 C.F.R. § 416.335. Therefore, the first month in which Hudnall is eligible to receive SSI benefits is October 2007.

         Hudnall's application was denied by an administrative law judge in January 2010 after an administrative hearing. (AR 746-54). The Appeals Council denied review of Hudnall's claim in January 2011. (AR 760-64). Hudnall appealed the Commissioner's final decision to this Court, and in January 2012, pursuant to the parties' joint motion to remand, the Court remanded the case back to the Commissioner. See Hudnall v. Comm'r of Soc. Sec., No. 1:11-cv-00101-RBC (N.D. Ind. Jan 9, 2012).

         In September 2012, a second administrative law judge denied Hudnall's claim. (AR 775-86). After granting Hudnall's request for review, the Appeals Council remanded the case back to an administrative law judge in January 2014. (AR 795-800).

         On July 30, 2014, a hearing was conducted by Administrative Law Steven J. Neary (“the ALJ”), at which Hudnall, who was represented by counsel; Hudnall's wife; and Charles McBee, a vocational expert (the “VE”), testified. (AR 612-36). On October 24, 2014, the ALJ rendered an unfavorable decision to Hudnall, concluding that he was not disabled since September 10, 2007, the date his application was filed, because he could perform a significant number of unskilled, light occupations in the economy despite the limitations caused by his impairments. (AR 588-601). The Appeals Council denied Hudnall's request for review (AR 533-38), at which point the ALJ's decision became the final decision of the Commissioner. See 20 C.F.R. § 416.1481.

         Hudnall filed a complaint with this Court on March 18, 2016, seeking relief from the Commissioner's final decision. (DE 1). Hudnall argues in this appeal that the ALJ: (1) improperly evaluated the opinion of his treating physician, Dr. Lilly Bontrager; (2) improperly evaluated the opinion of an examining physician, Dr. Michael Holton; (3) improperly discounted his symptom testimony; and (4) failed to adequately account for his moderate limitations in concentration, persistence, or pace when crafting the residual functional capacity (“RFC”) and when posing hypotheticals to the VE. (DE 20 at 15-24).


          A. Background

         At the time of the ALJ's decision, Hudnall was 43 years old (AR 190, 601); had a tenth grade education (DE 218); and had past relevant work experience as an installer (AR 121, 282). Hudnall alleges disability due to degenerative disc disease of the lumbar spine, migraine headaches, major depression, somatization disorder, and a pain disorder associated with psychological factors and a general medical condition. (DE 20 at 2).

         B. Hudnall's Testimony at the Hearing

         At the hearing, Hudnall, who was six feet tall and weighed 143 pounds, testified that he lives with his wife, who is employed outside the home, and their two sons, ages six and 16. (AR 616, 618, 630). In a typical day, Hudnall rises at about noon, because his medication often keeps him awake for three or four hours in the middle of the night. (AR 623-24). His wife gets his clothes ready for him, but he is able to dress himself. (AR 624). His wife cooks the meals, and her mother or sister help care for the children. (AR 625). He helps “a little bit” with the housework at his own pace, in that he will occasionally sweep the floor or help with the dishes, resting intermittently. (AR 625). He typically does not leave home; his interests include drawing. (AR 625-26).

         When asked why he thought he could not work, Hudnall stated that he gets migraine headaches two to three times a week, each of which lasts up to three hours. (AR 620). When he gets a migraine, he lies down in a darkened room. (AR 620). He also suffers from constant, throbbing pain in his back and right hip, which worsens with activity. (AR 620-22). He takes narcotic pain medications, Percocet and Opana, for this pain. (AR 620-21). He complained of a loss of appetite as a medication side effect, stating that he had lost 30 pounds since taking Percocet. (AR 622). Hudnall estimated that he could walk for about 20 minutes, stand for 15 minutes, and lift five pounds. (AR 622-23). When sitting, unless he is in a recliner, he leans to the right and supports himself on his right arm to minimize his back pain. (AR 623).

         Hudnall testified that his depression also prevents him from working, as he gets angry and does not get along well with others. (AR 626-27). He stated that his medications cause him difficulty with concentrating and staying focused. (AR 627). He had been going to the Northeastern Center for mental health care, but he could no longer afford to do so. (AR 629).[4]

         C. Summary of the Relevant Medical Evidence

          On October 11, 2007, Hudnall presented to the emergency room with a one-week history of back pain after lifting a motorcycle. (AR 344). His back pain radiated down his right lower leg. (AR 344). On clinical exam, he had normal station and gait without ataxia, no spinal tenderness, but moderate point tenderness around the upper aspect of the lumbar spine. (AR 345). He was diagnosed with acute lower back strain and right lower extremity radiculopathy. (AR 345). He was given oral medications. (AR 345).

         In early November 2007, Dr. Lilly Bontrager saw Hudnall as a follow-up to his emergency room visit for back pain. (AR 426). Hudnall presented with continued shooting pain, stating that his medicines were not helping. (AR 426). He relayed a five-year history of low-to-moderate intensity back pain; he also stated that his right ankle swells frequently. (AR 426). On clinical exam, Hudnall appeared to be uncomfortable; he preferred standing over sitting or lying down. (AR 426). He had tenderness in the mid-thoracic region, which worsened at the lower lumbar region; his paraspinal muscles were involved bilaterally, and the pain radiated down his right leg with palpation. (AR 426). Dr. Bontrager diagnosed Hudnall with back pain with right sciatica and ordered a lumbar MRI. (AR 426). The MRI showed minimal diffuse disc bulges at several levels without evidence of neural impingement, and mild facet joint degenerative changes, predominantly at L4-L5. (AR 377).

         In mid-November 2007, Dr. Michael Holton examined Hudnall at the request of the state agency. (AR 356-59). Hudnall reported worsening back pain that began six years earlier. (AR 356). He stated that his pain ranged from a “six” to a “10” on a 10-point scale; the pain radiates down both legs at times, but he could not afford to see a specialist. (AR 356). Dr. Holton observed that Hudnall appeared uncomfortable and frequently changed position. (AR 357). He exhibited moderate halting features with increased low back discomfort when moving from a chair to an exam table. (AR 357). He demonstrated an antalgic gait favoring his right leg and mild associated slowing and instability. (AR 358). Dr. Holton found Hudnall too unstable to safely attempt the requested ambulatory maneuvers. (AR 358). He had diffuse tenderness of the paralumbar areas, some moderate stiffness, and some guarding of the shoulders; however, an apprehension test was negative bilaterally. (AR 358). He had some limitations in range of motion, but his muscle strength and tone were normal except in his right leg. (AR 358, 360). A sensory exam revealed reduced light touch in the L4, L5, and S1 dermatomes. (AR 358). A straight leg raise test was positive on the right, but negative on the left. (AR 358). Dr. Holton diagnosed chronic low back pain with radicular features; joint pain, cannot exclude underlying degenerative joint disease; and chronic pain, under suboptimal control. (AR 358). He concluded that Hudnall would have difficulty performing light sedentary work on a limited basis even with modifications, “given his uncontrolled pain among other things which would result in a lot of difficulty maintaining concentration when performing even fairly simple, nonrepetitive tasks given his continuous level of pain.” (AR 359). Dr. Holton stated that Hudnall would clearly benefit from evaluation and treatment by a physical medicine specialist and a spine surgeon. (AR 359).

         In late November 2007, Hudnall returned to Dr. Bontrager, reporting continued back pain despite taking prednisone. (AR 425). He still had sciatica on the right and had difficulty sitting for several minutes on the right side; his pain worsened with bending. (AR 425). He rated his pain as a “seven.” (AR 425). Dr. Bontrager observed that the MRI showed mild degenerative changes at L4-L5 without evidence of neuro impingement. (AR 425). On physical exam, Hudnall had lower lumbar and paraspinal tenderness; an equivocal straight leg test bilaterally; limited flexion, extension, and side-to-side motion, but close to normal twisting; and symptoms radiating mildly into the right buttock and thigh region. (AR 425).

         Hudnall visited the emergency room in December 2007 for back spasms. (AR 373). He returned to the emergency room the following month with complaints of worsening pain in his left big toe. (AR 384). He was diagnosed with left great toe cellulitis and infected ingrown toenail. (AR 385).

         Also in December 2007, Dr. M. Brill, a state agency physician, reviewed Hudnall's record and concluded that he could lift 10 pounds frequently and 20 pounds occasionally; stand or walk six hours in an eight-hour workday; sit for six hours in an eight-hour workday; and occasionally climb, balance, stoop, kneel, crouch, and crawl. (AR 363-70). Dr. Brill's opinion was affirmed by Dr. B. Whitley, another state agency physician, in February 2008. (AR 394).

         In March 2008, Wayne J. Von Bargen, Ph.D., conducted a psychological evaluation at the request of the state agency. (AR 395-401). Dr. Von Bargen noted that Hudnall appeared distracted at times; his mood was dysphoric and irritable. (AR 395). He complained of difficulty concentrating and always feeling angry and aggravated. (AR 395-96). He reported a suicide attempt in 2003, but he denied any current plan or intent. (AR 395). Hudnall was able to repeat four digits forward and two digits backward; he was able to correctly perform simple arithmetic calculations. (AR 396). On the Wechsler Memory Scale-Third Edition, he earned indexes ranging from 47 to 61, which fell within the impaired range. (AR 396). Dr. Von Bargen found that although the etiology of his symptoms was not clear, Hudnall's results indicated concentration and memory function at levels significantly below that of others his age. (AR 397). Dr. Von Bargen thought that Hudnall's depression and his sustaining a past severe electric shock may be contributory. (AR 397). Dr. Von Bargen diagnosed major depressive disorder; amnestic disorder, not otherwise specified (“NOS”); and rule-out pain disorder. (AR 397). Hudnall was assigned a Global Assessment of Functioning (“GAF”) score of 50.[5] (AR 397).

         Later in March 2008, Joelle Larsen, Ph.D., a state agency psychologist, reviewed Hudnall's record and completed psychiatric review technique and mental RFC assessment forms. (AR 404-20). On the psychiatric review technique, Dr. Larsen found that Hudnall had mild difficulties in maintaining social functioning and moderate difficulties in activities of daily living and in maintaining concentration, persistence, or pace. (AR 414). On the mental RFC, Dr. Larsen concluded that Hudnall was markedly limited in understanding, remembering, and carrying out detailed instructions and moderately limited in maintaining attention and concentration for extended periods. (AR 418). In her narrative, Dr. Larsen wrote that Hudnall was capable of understanding, remembering, and carrying out simple instructions, but that there would be deficits with more detailed instructions. (AR 429). She opined that he was capable of making simple work-related decisions, remembering locations and simple work-like procedures, observing safety precautions, maintaining an ordinary routine without special supervision, relating adequately to coworkers and supervisors, attending to tasks for extended periods, maintaining a schedule, managing stress, adapting to changes in the work place, and maintaining a normal work pace. (AR 420). Dr. Larsen concluded that although Hudnall has a severely limiting condition, he “retains the ability to perform simple, repetitive tasks on a sustained basis without extraordinary accommodations.” (AR 420).

         In May 2008, Hudnall saw Dr. Bontrager for renewal of his prescriptions. (AR 519). In August 2008, Hudnall visited Dr. Bontrager, reporting no change in his back pain. (AR 447). In the past month, he had felt intermittent general sensitivity to touch. (AR 447). He did not feel physical therapy would make a difference and had concerns about costs and scheduling. (AR 447). He was taking Celexa, but noted no difference in his mood. (AR 447). Hudnall reported that his depression had worsened since losing his job; he was looking for work, but nothing had opened up yet. (AR 447). He thought that his pain issues may have exacerbated his depression, but he denied any suicidal or homicidal intent. (AR 447). On physical exam, Hudnall had mild lower thoracic and lower lumbar paraspinal muscle tenderness without radiation of symptoms to his legs or buttocks. (AR 447).

         In early October 2008, Hudnall returned to Dr. Bontrager, reporting that his back and leg pain were about the same, which contributed to his depression. (AR 446). He did not think physical therapy was helping him, aside from the electrical stimulation modality. (AR 446). On exam, he had mild tenderness in the paraspinal muscles, which was not consistent all the time. (AR 444). He had limited movement in extension and 40 degrees of flexion; side-to-side and twisting motions were normal, but bending was difficult. (AR 444). Deep tendon reflexes were normal. (AR 444). Dr. Bontrager reviewed Hudnall's medications and encouraged him to continue physical therapy and to increase his activity. (AR 444). In late October 2008, Hudnall reported to Dr. Bontrager that his joint pain had worsened. (AR 444). Vicodin only worked part of the time, and it caused him nausea at night; Amitryptiline made him feel groggy all day. (AR 444). He had attended four physical therapy sessions, but he did not find them helpful. (AR 444). His back condition was unchanged; he stated that he hurt all the time, but ...

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