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Breisch v. Commissioner of Social Security

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

August 9, 2017

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


          Susan Collins United States Magistrate Judge

         Plaintiff Patrick Breisch 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 in accordance with this Opinion and Order.


         Breisch applied for SSI on January 25, 2013, alleging disability as of July 1, 2004. (DE 10 Administrative Record (“AR”) 139-44, 156). SSI, however, 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 Breisch was eligible to receive SSI benefits was February 2013.

         The Commissioner denied Breisch's application initially and upon reconsideration, and Breisch requested an administrative hearing. (AR 85-88, 94-101). On September 25, 2014, a hearing was conducted by Administrative Law Judge Terry L. Miller (“the ALJ”), at which Breisch, who was represented by counsel, and Sharon Ringenberg, a vocational expert (the “VE”), testified. (AR 23-45).

         On November 20, 2014, the ALJ rendered an unfavorable decision to Breisch, concluding that he was not disabled since January 25, 2013, the date his application was filed, because he could perform a significant number of unskilled, medium-exertional jobs in the economy despite the limitations caused by his impairments.[3] (AR 10-18). The Appeals Council denied Breisch's request for review (AR 1-6), at which point the ALJ's decision became the final decision of the Commissioner. See 20 C.F.R. § 416.1481.

         Breisch filed a complaint with this Court on March 24, 2016, seeking relief from the Commissioner's final decision. (DE 1). Breisch argues in this appeal: (1) that the ALJ improperly discounted the credibility of his symptom testimony, (2) that the ALJ failed to develop the record regarding his mental condition, and (3) that the residual functional capacity (“RFC”) for medium work crafted by the ALJ is not supported by substantial evidence. (DE 14 at 14-22).


          A. Background

         At the time of the ALJ's decision, Breisch was 58 years old (DE 18, 139); had a tenth or eleventh grade education (AR 30, 176); and had prior work experience as an aerial lineman, fork lift driver, sand blaster, and tire technician (AR 176, 220). Breisch represented in his SSI application that he was seeking disability due to chronic obstructive pulmonary disease (COPD), shortness of breath, asthma, pneumonia, cough, choking, heart problems, and tachycardia. (AR 175).

         B. Breisch's Testimony at the Hearing

         At the hearing, Breisch, who was five feet, four inches tall and weighed 128 pounds at the time, testified that he is divorced and lives with a roommate in an apartment; Breisch receives food stamps, and his roommate pays the rent. (AR 28-29). Breisch has two children and seven grandchildren who reside elsewhere. (AR 28-29). He does not have a driver's license; a friend had driven him to the hearing. (AR 30). He was without health insurance at the time, though he had applied for it. (AR 41). His daily routine includes taking medications, watching television, washing dishes, cooking easy meals, and picking up around the house; he sits intermittently between tasks. (AR 37-39). He sleeps only three hours a night because he gets short of breath when lying on his back. (AR 38-29). He can dress and bathe independently. (AR 38). He can grocery shop if someone goes with him; he can walk the aisles if he holds onto the cart. (AR 37-38). His neighbor does his laundry for him. (AR 37). His leisure interests include collecting coins and building model cars. (AR 38).

         When asked about his breathing problems, Breisch stated that he had quit smoking “[a]lmost a year now.” (AR 32-33). He stated that he has problems with his breathing “every day, all day, ” but “[m]ainly in the morning.” (AR 33). When he wakes up, he “can barely breathe” and “it takes [him] a while to get back in the rhythm, ” stating that sometimes he uses his inhalers more than the two times a day as prescribed. (AR 33, 41). Temperature extremes, strong odors, and chemicals aggravate his breathing. (AR 34, 39-40). He does not have a doctor that manages his breathing problems; he just goes to the emergency room for care as needed. (AR 33-34). He had been hospitalized several times for his breathing problems. (AR 34). When asked about his heart difficulties, Breisch described his symptoms as “anxiety” or “fluttering.” (AR 34-35). He had not received any treatment for his heart problems. (AR 35).

         Breisch estimated that he could walk one-half of a block before needing to rest due to his breathing and his leg muscles. (AR 35). He thought that he could stand for 20 minutes at a time, but then his legs “go numb” and he has to move around. (AR 35). He has no problems with sitting or bending to pick up items from the floor. (AR 35-36). Carrying a gallon of milk makes him short of breath. (AR 35-36). Sometimes his hands go numb, causing him difficulty grasping items. (AR 36). He has difficulty climbing stairs. (AR 36).

         C. Summary of the Relevant Medical Evidence

         In December 2011, Breisch went to the emergency room after he fell at home and hit the left side of his chest against the porch railing. (AR 221-23). He rated his pain as a “10” on a 10-point scale, stating that it hurt to breathe. (AR 221). Upon exam, wheezing was noted throughout the lung fields. (AR 224). An X-ray showed emphysema and an old fracture in his ninth right rib, as well as an irregularity in his left eighth rib indicating that a fracture could not be excluded. (AR 225, 244). He was taking Advair (twice daily), Spiriva (daily), and Albuterol Sulfate (as needed). (AR 222). He was diagnosed with a closed fracture of the left eighth rib, history of fall, chest wall pain, and COPD. (AR 223, 226-27). He was given Prednisone for his wheezing and pain mediation for his rib fracture. (AR 224-25). He was to follow up with his pulmonologist the following week. (AR 224).

         In August 2012, Breisch was hospitalized for three days after complaints of left-side pleuritic chest pain and an upper respiratory infection, including sinus pressure and nasal congestion. (AR 245-50). He rated his pain as an “eight, ” stating that it worsened when coughing and lessened when lying down. (AR 247, 250). He reported a generalized achiness, difficulty breathing, and numbness and tingling in his extremities; he was very weak and needed assistance to get into bed. (AR 250, 252). He also reported difficulty sleeping, nausea with a hacking cough, and loss of consciousness during coughing episodes. (AR 247, 250). An exam revealed a hazy opacity on the right lung and evidence of Systemic Inflammatory Response Syndrome, constituting sepsis. (AR 245). It was noted that he was an active smoker (half a pack a day for 35 years) with a history of COPD and asthma. (AR 247, 250).

         During this hospital stay, a physical exam revealed that Breisch was cachectic, chronically ill appearing, with pale, hot skin, and appeared older than his stated age. (AR 253). He had diffuse wheezing throughout all lung fields, with decreased air entry (AR 248); he had very tight bilateral inspiratory and expiratory wheezing, with poor to minimal air movement (AR 251). X-rays showed a three-centimeter area of irregular hazy opacity of the right perihilar region suggestive of consolidation, as well as calcified granuloma on the left. (AR 281). He also exhibited some irregular laboratory markers, which the physician attributed to poor nutrition. (AR 248, 255, 283-96). Repeat electrocardiograms were abnormal, with prolonged QT intervals. (AR 276-77). He was diagnosed with COPD, sinus tachycardia, pneumonia, sepsis, dry cough, pleuritic pain, hypoxemia, tussive syncope, and hypokalemia, which resolved during his stay. (AR 245, 252). He was started on antibiotics, which improved his sepsis; respiratory treatments; pain and nausea medications; and intravenous fluids. (AR 245, 254-57). During his hospitalization, Breisch received assistance with filing a disability application. (AR 266). Upon discharge, he was instructed to follow up with a primary care physician in two weeks and to obtain a chest X-ray in two months. (AR 245).

         In February 2013, Breisch underwent a consultative physical examination by Dr. H.M. Bacchus, Jr., at the request of the state agency. (AR 301-04). Dr. Bacchus noted that Breisch was diagnosed with asthma in 2005, as well as pneumonia, COPD, and heart problems in 2012. (AR 302). Upon exam, Dr. Bacchus observed inspiratory and expiratory wheezing, with “course grading wheezing” in the left upper lobe, no use of accessory respiratory muscles, and “increase AP diameter chest wall decrease air intake.” (AR 303). Breisch had a regular heart rate and rhythm without murmurs, rubs, or gallops. (AR 303). Dr. Bacchus further noted that Breisch had a sprained left ankle and reduced range of motion in his cervical and lumbar spine, both knees, and left ankle. (AR 304). Breisch exhibited a depressed mood, monotone speech, and a flat affect. (AR 303). Dr. Bacchus's impression was: “asthma/COPD per history recent PFT 56% initially fev1 86% with [Albuterol]”; dorsal lateral ankle sprain; pneumonia per history; and heart problem per history, tachycardia. ...

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