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Clary v. Berryhill

United States District Court, N.D. Indiana, South Bend Division

August 29, 2017

DAVID CLARY, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER

          JON E. DEGUILIO, JUDGE UNITED STATES DISTRICT COURT.

         On March 29, 2016, Plaintiff David Clary filed a complaint in this Court seeking review of the final decision of the Defendant Commissioner of Social Security denying his application for social security disability benefits [DE 1]. The matter is fully briefed and ripe for decision [DE 16; DE 19; DE 20]. For the reasons stated below, the Court remands this matter to the Commissioner for further proceedings.

         I. FACTS

         Clary filed an application for disability insurance benefits on February 5, 2013, alleging an onset date of January 21, 2013. Clary filed his application immediately after being hospitalized for two weeks where he was placed on a mechanical ventilator and received an endotracheal intubation. Upon discharge, it was noted that he had the following diagnoses: pneumonia, sepsis (resolved), adjuvant pneumothorax, possible chronic obstructive pulmonary disease (“COPD”), and hepatitis (resolved). R. at 788. He continued to receive at-home health care because he required assistance with activities of daily living. He could not be left alone because he suffered from confusion, weakness, and forgetfulness, and he was a fall risk. R. at 442, 449-510. He was again hospitalized for four days in late February 2013 because of fever, dyspnea, weakness, and gastroenteritis marked by low concentrations of potassium and sodium. R. at 235-78.

         After his initial hospitalization in 2013, Clary continued to suffer from respiratory problems. A series of pulmonary function tests were conducted throughout Clary's course of treatment, including on March 15, 2013 (R. at 409, 417), June 5, 2013 (R. at 533), October 2013 (R. at 840-49), and June 20, 2014 (R. at 834-38). Clary's treating specialist, Dr. Ndukwu, who is board certified in pulmonary disease, indicated in March 2013 that the test revealed Clary had “severe COPD” dominated by emphysema features. R. at 407, 417.

         After suffering from COPD exacerbation in July 2013 (R. at 602), a CT scan performed later that month revealed moderate emphysematous changes. R. at 628. On August 6, 2013, a timed pulmonary walking test was conducted and it was observed that Clary had “some dyspnea” during the test and “increased work of breathing [during] the entire test procedure.” R. at 704.

         Dr. Lykens, who is board certified in internal medicine and pulmonary disease, was Clary's treating physician from 2013 through late 2014. Dr. Lykens opined that the October 2013 pulmonary function test and CT scan revealed evidence of COPD with severe emphysema. R. at 848-50. In June 2014, Dr. Lykens reported that the updated pulmonary function test showed some slight improvement and he diagnosed Clary with chronic COPD. R. at 826-38. Dr. Lykens advised Clary to use his inhalers regularly for his “severe obstructive lung disease.” After physically examining Clary, Dr. Lykens opined that Clary would not be able to stand/walk 6-8 hours per day and could not lift anything over ten pounds, which would result in Clary's being limited to sedentary work.

         Clary also began reporting lower back pain in late 2013 to his treating orthopedic surgeon, Dr. Fielder. R. at 925. MRI's performed on Clary's lumbar spine went from “essentially normal” in early 2013 (R. at 637), to revealing facet arthropathy of the lower lumbar spine in June 2014. R. at 937.

         In November 2013, Dr. Fielder diagnosed Clary with trochanteric bursitis. R. at 925. In February 2014, Dr. Fielder referred Clary for physical therapy with a diagnosis of sciatica (or pain that radiated from Clary's lumbar spine to the back of his left leg). R. at 858-80. However, in late March, Clary lost his insurance and had to discontinue physical therapy. Clary's discharge summary indicated that despite some improvement, he continued to have reduced strength in his left hip, knee, and ankle, reduced range of motion in his spine, and a positive straight leg raising test. He could only walk one thousand feet with difficulty and while using a cane. In May 2014, Clary continued to present with a positive straight leg test (R. at 887-93). By August 2014, the symptoms caused by Clary's facet arthropathy had not improved despite his use of a prescribed TENS unit. R. at 930-35.

         With respect to state agent opinions, on June 4, 2013, state agent consultative examiner, Dr. Pithadia, noted that Clary became short of breath with only minimal activity. R. at 523-26. Clary also had a reduced range of motion in his lumbar spine and a positive straight leg test. Dr. Pithadia opined that Clary would become short of breath with any activity that required lifting and carrying more than five pounds, which essentially limited Clary to performing less than sedentary work.

         After reviewing Dr. Pithadia's findings and Clary's other medical records, in June and August 2013, state agency consultants opined that Clary could actually perform light work (which included the ability to occasionally lift/carry up to twenty pounds and frequently lift/carry up to ten pounds), with some specified postural and environmental limitations. R. at 78-86, 88-98.

         Clary's application was denied initially on June 18, 2013, and was then denied on reconsideration on August 19, 2013. On October 16, 2014, a hearing was held before Administrative Law Judge Kimberly Cromer (“ALJ”). During the hearing, testimony was received from Dr. Bernard Stevens (an impartial medical expert) (“ME”), the claimant, and Mr. James Breen (a vocational expert) (“VE”).

         The ME, who specialized in internal medicine for thirty years and had reviewed Clary's medical file, testified that although Clary complains of low back pain, the MRI's of Clary's lumbar spine from February 2013 and of his hip from November 2013 were normal. The ME did not believe that there was any diagnostic evidence to support Clary's diagnosis of lumbar radiculopathy.[1] The ME also did not believe that Clary was unable to regularly lift five or ten pounds, because it was his opinion that Clary had “no musculoskeletal impairments” and such a limitation was just “unsupported.” The ME characterized Clary as having “mild COPD” and essentially normal pulmonary function studies. The ME opined, without the benefit of first hearing Clary testify, that Clary was capable of performing work at the light exertional level.

         Clary then provided testimony concerning the nature of his limitations. He indicated that his breathing problems become worse when he tries to do too much, such as by playing with his sons. After getting winded, Clary stated that he needs about fifteen to twenty minutes to recover. Clary continues to seek treatment from Dr. Lykens on a bi-monthly basis, uses regular inhalers four times per day, and uses a rescue inhaler three to five times per week. As to Clary's back pain which radiates to his left hip, the problem started around November 2013. Clary testified that he takes Naproxen and uses a pain cream four times a day, but the pain is still present and he doesn't sleep well at night. On some days the pain is bad enough that he must use a cane, which his physical therapist recommended in early 2014. When using his cane, Clary can only lift a couple of pounds in his non-dominant hand. Ultimately, because of his back issues and shortness of breath, Clary cannot vacuum and he must take several breaks when doing household chores, like cleaning dishes or folding towels. On good days, which occur approximately two days per week, Clary indicated that he can walk to the mailbox, but on bad days, he cannot.

         The VE testified that based strictly on the (relevant) hypothetical posed to him (which offered an assigned residual functional capacity (“RFC”)[2] of light work, limited by no climbing of ladders, ropes, and scaffolds, no work at unprotected heights or around hazardous machinery, only occasional balancing, kneeling, stooping, crawling, crouching or using the left leg for operation of foot controls, and avoiding concentrated exposure to extreme temperatures, humidity, and air pollutants), Clary would be able to perform his past work (as generally performed) in quality control, and he could also perform other work in the economy, such as work as a hand packager, cashier, or mail clerk. The VE confirmed that, generally speaking, a person cannot maintain competitive work if he would be off-task more than fifteen percent of the workday or if he needed unscheduled work breaks.

         The ALJ issued a decision on December 15, 2014, denying Clary disability benefits and concluding that Clary was not disabled under the Social Security Act because he was able to perform his past work and other work in the national economy (steps 4 and 5). The Appeals Council then denied Clary's request for review on March 1, 2016, making the ALJ's decision the final determination of the Commissioner. Schomas v. Colvin, 732 F.3d 702, 707 (7th Cir. 2013). Clary seeks review of the Commissioner's decision, thereby invoking this Court's jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3).

         II. STANDARD OF REVIEW

         This Court will affirm the Commissioner's findings of fact and denial of disability benefits if they are supported by substantial evidence. Craft v. Astrue, 539 F.3d 668, 673 (7th Cir. 2008). Substantial evidence consists of “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). This evidence must be “more than a scintilla but may be less than a preponderance.” Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir. 2007). Thus, even if “reasonable minds could differ” about the disability ...


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