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Klinger v. Commissioner of Social Security

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

August 9, 2017

ANNA F. KLINGER, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, sued as Nancy A. Berryhill, [1]Defendant.


          Susan Collins United States Magistrate Judge

         Plaintiff 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”).[2] (DE 1). For the following reasons, the Commissioner's decision will be AFFIRMED.


         Klinger 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 recover DIB).

         The 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.

         Klinger 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).


         At the 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).

         A. Klinger's Testimony at the Hearing

         At the 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).

         When 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.[4] (AR 66, 69).

         In her 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 symptom testimony.

         C. Summary of the Relevant Medical Evidence

         On July 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).

         On 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).

         Later 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).

         Klinger 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).

         In 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).

         On 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).

         On 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).

         On 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 814).

         On May 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).

         On 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).

         On 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 ...

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