United States District Court, N.D. Indiana, Fort Wayne Division
ROY M. HUDNALL, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, sued as Nancy A. Berryhill, Acting Commissioner of SSA, Defendant.
OPINION AND ORDER
Collins, United States Magistrate Judge
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”). (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 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
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).
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).
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.
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).
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
Hudnall's Testimony at the Hearing
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.
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).
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).
Summary of the Relevant Medical Evidence
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).
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).
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).
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).
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).
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).
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
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).
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).
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 ...