United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
DEGUILIO, JUDGE UNITED STATES DISTRICT COURT.
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.
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
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.
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.
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.
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.
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
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
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.
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”).
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. 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.
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.
testified that based strictly on the (relevant) hypothetical
posed to him (which offered an assigned residual functional
capacity (“RFC”) 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
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).
STANDARD OF REVIEW
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