United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
Collins United States Magistrate Judge
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”). (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.
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.
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).
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. (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.
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).
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).
Breisch's Testimony at the Hearing
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).
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).
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).
Summary of the Relevant Medical Evidence
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).
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).
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).
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. ...