United States District Court, N.D. Indiana, Fort Wayne Division
ANNA F. KLINGER, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, sued as Nancy A. Berryhill, Defendant.
OPINION AND ORDER
Collins United States Magistrate Judge
Anna F. Klinger appeals to the district court from a final
decision of the Commissioner of Social Security
(“Commissioner”) denying her application under
the Social Security Act (the “Act”) for
disability insurance benefits
(“DIB”). (DE 1). For the following reasons, the
Commissioner's decision will be AFFIRMED.
applied for DIB in August 2011, alleging disability as of
September 15, 2010. (DE 9 Administrative Record
(“AR”) 380-86). Klinger was last insured for DIB
on June 30, 2012 (AR 502), and thus, she must establish that
she was disabled as of that date. See Stevenson v.
Chater, 105 F.3d 1151, 1154 (7th Cir. 1997) (explaining
that with respect to a DIB claim, a claimant must establish
that she was disabled as of her date last insured in order to
Commissioner denied Klinger's application initially and
upon reconsideration. (AR 211-17). After a timely request, a
hearing was held on December 3, 2012, before Administrative
Law Judge Maryann Bright (“the ALJ”), at which
Klinger, who was represented by counsel; her ex-husband; and
a vocational expert, Marie Kieffer (the “VE”),
testified. (AR 94-141). On January 14, 2013, the ALJ rendered
an unfavorable decision to Klinger, concluding that she was
not disabled because she could perform a significant number
of unskilled, sedentary jobs in the economy despite the
limitations caused by her impairments. (AR 159-69). However,
upon Klinger's timely request, the Appeals Council
granted review and remanded the case for another hearing. (AR
177-80). The second hearing was held on September 24, 2014,
and the same individuals testified before the same ALJ. (AR
49-93). On November 12, 2014, the ALJ issued another
unfavorable decision (AR 27-38), at which point the ALJ's
decision became the final decision of the Commissioner.
See 20 C.F.R. § 404.981.
filed a complaint with this Court on May 19, 2016, seeking
relief from the Commissioner's decision. (DE 1).
Klinger's sole argument on appeal is that the ALJ failed
to properly evaluate the opinion of her treating specialist,
Dr. Thomas Keucher. (DE 17 at 7-8).
time of the ALJ's decision, Klinger was 43 years old (AR
38, 142); had obtained her GED (AR 477); and possessed past
relevant work experience as a housekeeper, rubber goods
cutter, and salesperson (AR 36, 525). Klinger alleges
disability due to lumbar degenerative disc disease/back
strain. (DE 17 at 2).
Klinger's Testimony at the Hearing
hearing, Klinger, who was five feet, three inches tall and
weighed 130 pounds, testified that she lives with her
ex-husband, who is on disability due to a stroke; she has
four adult daughters. (AR 55-56). She testified that her
ex-husband “takes care of [her]” in that he does
all the laundry and the cleaning, and he helps her get
dressed if she needs assistance. (AR 56, 71-72). She was on
food stamps and did not have health insurance; she had been
on Medicaid, but it was denied the previous month. (AR 56-57,
72). She drives a short distance each day to visit her
daughter, who has two small children, and stays about an
hour. (AR 58). She had driven herself and her ex-husband to
the hearing. (AR 59). She smokes 20 cigarettes a day. (AR
66-67). She stopped working in September 2010 because she
injured her back in her housekeeping job. (AR 60, 62). Most
days, Klinger watches television, alternating between sitting
in a recliner and lying down, and prepares dinner; she
grocery shops with her ex-husband. (AR 67-68). Her hobbies
include reading and crocheting; she can read for an hour at a
time, but sometimes has to reread the material. (AR 68).
asked why she thought she could not work, Klinger stated that
she is in constant pain; that the pain medication she takes
makes her tired and unable to concentrate; and that she has
to lie down for an hour, three or four times a day. (AR 65,
69-70). She stated that her back “starts to hurt pretty
good” after standing for three minutes, and that she
can stand for 10 minutes at most. (AR 65, 68-69). The pain
extends into her hips and down her legs. (AR 67). She sits on
her hands, using them to take pressure off of her back. (AR
69). If she bends over, her pain intensifies and she
“get[s] stuck” and “can't move”;
her ex-husband then has to help her move again. (AR 70-71).
She can lift a gallon of milk, which weighs about seven
pounds, but not repeatedly; she agreed with the five-pound
lifting limitation assigned by Dr. Keucher. (AR 71). She had
undergone physical therapy and spinal injections, but they
were not effective; she uses a heating pad, which is
helpful. (AR 66, 69).
decision, the ALJ concluded that Klinger's symptom
testimony (and the testimony of her husband) were “not
fully credible.” (AR 31). Klinger does not challenge
the ALJ's credibility determination concerning her
Summary of the Relevant Medical Evidence
20, 2010, Klinger saw Dr. Kevin Rahn at Fort Wayne
Orthopaedics, L.L.C., for complaints of low back pain after a
work injury. (AR 741-42). Klinger told Dr. Rahn that she had
injured her back at work two months earlier, in May 2010, and
that the injury was a continuation of a prior injury
“back last spring.” (AR 741). She reported
numbness in her left leg and a “fairly
significant” constant ache and some tingling in her low
back; she described her back pain as “stabbing”
and “burning.” (AR 741). On a scale of one to 10,
she rated her pain as a “seven, ” but stated that
it increases to a “10” at times. (AR 741). A
neurological exam revealed no deficits; she had normal range
of motion, except that forward bending was reduced by 50% due
to paraspinal muscle spasms. (AR 741). Dr. Rahn reviewed a
March 2009 MRI scan showing an annular tear at L4-L5,
degeneration at L4-L5 and L5-S1, and dehydration at L4- L5
and L5-S1. (AR 742). Dr. Rahn diagnosed Klinger with low back
pain; left leg pain; history of annular tear, L4-L5; and
degenerative disc disease, L4-L5 and L5-S1. (AR 742). He
prescribed a Medrol Dosepak, Mobic, Skelaxin for spasm,
Vicodin for pain, and 10 sessions of physical therapy. (AR
742). Dr. Rahn released Klinger to return to work without
restrictions, noting that “[t]hey seem to be working
with her on her own” but that if work did become an
issue, he would “get some official restrictions going
forward.” (AR 742; see AR 743).
August 3, 2010, Klinger reported to Dr. Rahn that she was not
much better when taking the medications he had prescribed.
(AR 739). He recommended that she continue her medications,
undergo an MRI, and hold off on further physical therapy
until after the MRI. (AR 739).
that month, on August 17, 2010, Klinger told Dr. Rahn that
she was having problems with pain. (AR 736). He observed that
her recent MRI results looked about the same as her 2009 MRI
results. (AR 736; see AR 747). Dr. Rahn recommended
that she undergo an L5 nerve root block on the left to treat
some of her increasing pain in the L5 distribution and her
annular tear, which he thought was probably the main cause of
her pain. (AR 736). He refilled her Vicodin and assigned a
25-pound lifting restriction and no bending or twisting. (AR
736). Dr. Thomas Lazoff administered the nerve block to
Klinger on September 3, 2010. (AR 744-46). On September 14,
2010, Klinger visited Dr. Rahn, reporting that she was better
due to the nerve block. (AR 732). She had very few leg
symptoms and was almost off of Vicodin, stating that she had
been taking “quite a bit of Vicodin” before the
block. (AR 732). She mostly reported back pain. (AR 732). He
recommended that she resume physical therapy; continue taking
Mobic daily and Vicodin as needed; and to try Ultram, a
non-narcotic medication, for more consistent pain relief. (AR
732). Dr. Rahn continued her prior restrictions. (AR 732-33).
saw Dr. Rahn again on September 28, 2010, reporting that she
had a setback last week and was now at the point where she
had to leave work. (AR 727). Her radicular symptoms in her
buttocks and legs were much worse, especially with extension;
the symptoms improved with sitting forward in flexion and
decompressing the neural foramen. (AR 727). Dr. Rahn refilled
her Vicodin and referred her for a discogram for a more
thorough evaluation of her back problem to assess surgical
options. (AR 727). He put Klinger off work until he could
assess the discogram results, noting that she was better when
off work. (AR 727, 729).
October 2010, worker's compensation denied Klinger's
claim, and she was discharged from Fort Wayne Orthopaedics.
(AR 725). Also in October 2010, Klinger was discharged from
physical therapy at her request, having attended two visits
since September 20, 2010. (AR 748; see AR 749-60).
October 22, 2010, Klinger presented to the emergency room due
to increasing back pain, stating that her worker's
compensation was refusing to pay for her treatment. (AR 753).
She reported severe back pain which was radiating to her
legs, as well as some paresthesia or dysesthesia sensation in
both legs. (AR 753). A straight leg lift was positive on the
left for lower back pain and some questionable radicular
pain, and was negative on the right until 70 degrees, when
she had low back pain. (AR 753). She was given Norflex and
Demerol, and her pain decreased to a “three”
shortly thereafter. (AR 753-54).
February 9, 2011, Klinger underwent an internal medicine
evaluation by Dr. B.T. Onamusi. (AR 802-04). She reported
constant severe pain in her low back, which was aggravated by
standing, walking, lifting, bending, or twisting; she also
reported radicular pain with paresthesia down her left leg.
(AR 802). She denied any leg weakness, sphincteric
dysfunction, or balance problems. (AR 802). She estimated
that she could sit for two hours, stand for five minutes,
walk one and one-half blocks, and lift 10 pounds. (AR 802).
She could perform housework, laundry, grocery shopping, self
care, and drive a car. (AR 802). On exam, her muscle tone,
strength, reflexes, and sensation were intact, and she walked
with a normal gait. (AR 803). She had no difficulty
transferring on and off the exam table, and she was able to
squat, kneel, walk in tandem, and stand on her heels and
toes. (AR 803). She had no problems with grasping, reaching,
or manipulation. (AR 803). She had some limitations in range
of motion of her back, with moderate discomfort during active
motion and moderate to severe tenderness around the
lumbosacral joint; she had no paraspinal muscle spasm. (AR
803). A straight-leg raise test was negative bilaterally. (AR
803). Dr. Onamusi opined that Klinger was “capable of
engaging in sedentary to light physical demand level
activities as defined in the Dictionary of Occupational
Titles.” (AR 803).
February 24, 2011, Dr. J. Sands, a state agency physician,
reviewed Klinger's record and completed a physical
residual functional capacity (“RFC”) assessment.
(AR 806-13). Dr. Sands concluded that Klinger could lift 10
pounds frequently and 20 pounds occasionally; stand or walk
six hours in an eight-hour workday; sit six hours in an
eight-hour workday; occasionally balance, stoop, kneel,
crouch, crawl, and climb ramps and stairs, but never climb
ladders, ropes, or scaffolds; and must avoid concentrated
exposure to hazards such as machinery and heights. (AR
807-10). Dr. M. Ruiz, another state agency physician,
affirmed Dr. Sands's opinion the following month. (AR
12, 2011, Klinger visited the emergency room for a one-day
history of intermittent muscle spasms in her arms and legs.
(AR 916). She had run out of Vicodin. (AR 916). She
demonstrated normal muscle strength and gait. (AR 917). The
doctor gave her an injection, instructed her to use heat or
ice as tolerated, and encouraged her to see her family doctor
in the next few days. (AR 917).
September 1, 2011, Klinger visited the emergency room,
complaining of a rapid heartbeat and shortness of breath. (AR
893-915). A musculoskeletal exam was normal, with non-tender,
full range of motion. (AR 897). Her symptoms resolved, and
she checked out against medical advice, stating that she
would return if her symptoms worsened. (AR 909).
October 4, 2011, Klinger was examined by Dr. Venkata
Kancherla at the request of the state agency. (AR 865-67).
She told Dr. Kancherla that she could not lift or sit for
long and that she could not stand without pain. (AR 865). Dr.
Kancherla observed that Klinger was able to get on and off
the examination table without assistance, and that she could
recline flat, sit up, squat, and walk on her heels and toes.
(AR 866). She had normal strength and muscle tone, a normal
gait, and her station was erect. (AR ...