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Horr v. Berryhill

United States District Court, N.D. Indiana

September 6, 2017

SHARON HORR, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.



         The Plaintiff, Sharon Horr (pronounced “Harr”), seeks review of the final decision of the Commissioner of the Social Security Administration denying her application for Disability Insurance Benefits (DIB) and Supplemental Security Income. The Plaintiff claims that she would be unable to maintain substantial gainful employment due to limitations brought about by various physical impairments.


         The Plaintiff applied for Social Security Disability Insurance and Supplemental Income benefits in June 2011, alleging she became disabled on May 20, 2008. The Plaintiff's application was denied initially and upon reconsideration. In August 2012, an administrative law judge (ALJ) held a hearing on the Plaintiff's application, finding that the Plaintiff was not entitled to benefits. The Appeals Council denied review on October 22, 2013, making the ALJ's decision the final decision of the Commissioner. The Plaintiff then filed this action for administrative review before the Court. On March 12, 2015, Judge Philip P. Simon entered an Opinion and Order (R. 717, ECF No. 4) remanding this matter to the Commissioner for further consideration, because the administrative law judge did not consider the opinion of the Plaintiff's treating physician, Dr. Daniel Roth. On February 1, 2016, a second ALJ presided over a new hearing, in which the Plaintiff and a vocational expert testified. (R. 635-71.) The new ALJ issued a decision on February 23, 2016, finding that the Plaintiff did not meet the regulatory definition of disability and was not entitled to disability benefits. (R. 566.) The Plaintiff now seeks review of this second decision under 42 U.S.C. § 405(g) and § 1383(c)(3).

         THE ALJ's HOLDING

         Disability is defined as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). To be found disabled, a claimant must demonstrate that his physical or mental limitations prevent him from doing not only his previous work, but any other kind of gainful employment which exists in the national economy, considering his age, education, and work experience. § 423(d)(2)(A).

         An ALJ conducts a five-step inquiry in deciding whether to grant or deny benefits. 20 C.F.R. § 404.1520. The first step is to determine whether the claimant no longer engages in substantial gainful activity (SGA). Id. In the case at hand, the Plaintiff has not engaged in SGA since the alleged onset of disability, on May 20, 2008, through September 30, 2011, the date she was last insured. (R. at 548.) In step two, the ALJ determines whether the claimant has a severe impairment limiting the ability to do basic work activities under § 404.1520(c). Here, the ALJ determined that the Plaintiff had been diagnosed with and treated for cervical and lumbar degenerative disc disease, status post cervical and lumbar surgical fusion, chronic pain syndrome, fibromyalgia, headaches and migraines, obesity, post-traumatic stress disorder, depression, hernia repair with mesh, and left hammertoe surgery. (R. at 549.) Step three requires the ALJ to “consider the medical severity of [the] impairment” to determine whether the impairment “meets or equals one of [the] listings in appendix 1 . . . .” § 404.1520(a)(4)(iii). If a claimant's impairment(s), considered singly or in combination with other impairments, rise to this level, she earns a presumption of disability “without considering [her] age, education, and work experience.” § 404.1520(d). But, if the impairments, either singly or in combination, fall short, an ALJ must move to step four and examine the claimant's “residual functional capacity” (RFC)-the types of things she can still do physically, despite her limitations-to determine whether she can perform this “past relevant work, ” § 404.1520(a)(4)(iv), or whether the claimant can “make an adjustment to other work” given the claimant's “age, education, and work experience.” § 404.1520(a)(4)(v).

         Here, the ALJ determined that the Plaintiff's impairments do not meet or equal any of the listings in Appendix 1 and that she has the RFC to perform light work, as defined by § 404.1567(b). The ALJ determined that the Plaintiff had the physical residual functional capacity to perform sedentary work as defined in 20 C.F.R. 404.1567(a), except that she could stand and walk, in combination, for two hours and sit for six hours during an eight-hour workday; she could lift, carry, push and pull up to ten pounds; and she could occasionally climb ramps and stairs, balance, stoop, kneel, crouch and crawl, but she could never climb ladders, ropes, or scaffolds. The ALJ also determined that the Plaintiff retained the mental RFC to understand, remember, and carry out simple, routine, repetitive tasks, to make simple, work related decisions, she could tolerate few, if any, changes in the workplace, and could not perform fast production work.

         In reaching her decision, the ALJ went through an analysis of Dr. Roth's opinion in the record. In the prior appeal, Judge Simon remanded the case back to the ALJ because Dr. Roth's opinion was not given any consideration. (R. 722.) First, the ALJ found Dr. Roth's opinion was not entitled to controlling weight because the documents were treatment notes and not medical opinions. (R. 557.) In reaching this decision, the ALJ observed that Dr. Roth's treatment notes were well supported by clinical and laboratory diagnostic techniques, but that Dr. Roth did not order any diagnostic testing of the Plaintiff's neck or back, and proceeded with treatment without them. (Id.) The ALJ noted that orthopedic surgeon Dr. McGee ordered diagnostic testing of the Plaintiff's neck and mid-back in January 2012 and that the imaging demonstrated no significant neck or back abnormalities and there was no evidence of disc herniation or significant stenosis. (Id.)

         The ALJ also noted the imaging ordered by orthopedic surgeon Dr. Shugart from August 2014, demonstrated a mild and stable ridge bulge complex at the L1-2 level. (Id. at 557-58.) The ALJ noted that the L2-3 disc was unremarkable other than for left facet arthropathy. (Id.) The L3-4 disc was also unremarkable with no significant disc bulge at the L4-5 level. The ALJ noted that the ridge bulge complex at the L5-S1 level appeared improved, and there was no central stenosis. (Id.) The ALJ noted that Dr. Shugart advised the Plaintiff that the study indicated that she did not need surgery. The ALJ suspected that the Plaintiff's pain was inflammatory, prescribed Voltaren, and recommended continued physical therapy. (Id. at 558.) The ALJ noted that subsequent diagnostic testing in August 2015 is relevant to the Plaintiff's complaint of back pain as well as her complaint of debilitating headaches. (Id.) The tests of the thoracic spine showed only mild degenerative disc disease with normal vertebrae heights. The ALJ noted that a CT scan of the head was negative for acute intracranial abnormality. (Id.)

         The ALJ also noted that Dr. Roth's treatment notes were generally consistent with the substantial evidence on the record. (Id.) The ALJ observed that Dr. Campbell's exam showed trigger points, knee crepitation, negative straight leg raise, and normal ranges of motion of the shoulders, wrists, hips, ankles, and feet. The exam by physical medicine specialist Dr. Lazoff noted tender points, limited range of motion of the back, normal strength, intact gait and upper/lower muscle strength. (Id.) The ALJ observed that the exams by orthopedic surgeons Dr. McGee and Dr. Hoffman showed normal range of motion of the neck, no tenderness to palpation of the neck/para-scapular region, and normal strength. (Id.) The ALJ also noted that the exam by Dr. Posner noted significantly reduced range of motion of the neck. (Id.)

         Through her analysis, the ALJ summarized that Dr. Roth's findings upon physical examination were generally consistent with those of the other treating and examining sources “other than findings that were particularly unique to him.” (Id.) The ALJ noted as an example that Dr. Roth noted cervical and lumbar facet loading. (Id.) The ALJ observed that regardless of the particularly unique findings, all of the physical examinations noted normal and abnormal findings that were within range of another. (Id.) The ALJ noted that though Dr. Posner noted severely limited neck range of motion, none of the other physicians did and that the degree of limitation is unsupported by the results of the diagnostic tests. (Id.)

         The ALJ considered other factors in determining whether Dr. Roth's treatment notes were entitled to great weight, noting that except for Dr. Shugart, the other physicians had brief or no treatment relationships with the Plaintiff and examined her no more than once or twice. The ALJ noted that the doctors who examined and treated the Plaintiff were familiar with the other information in the case and were specialists.[1]

         In evaluating all of the factors considered in determining whether a medical opinion is entitled to controlling, great, significant, little or no weight, the ALJ concluded that Dr. Roth's opinion is entitled to no weight as a medical opinion because the ALJ concluded that it is not a medical opinion. The ALJ concluded that Dr. Roth's opinion is a treatment note, made contemporaneously with the relevant period under consideration. The ALJ again noted that Dr. Roth's clinical findings and observations are generally consistent with the observations of the Plaintiff's other treating healthcare providers. (Id. at 559.) Ultimately, the ALJ gave Dr. Roth's observations and clinical findings significant weight, just like the observations made at the consultative examination. (Id.)

         The ALJ gave greater weight to the records of Dr. McGee and Dr. Hoffman who, in addition to their examinations and treatment recommendations, ordered and reviewed diagnostic studies of the Plaintiff's cervical and thoracic spines. (Id.) Finally, the ALJ gave Dr. Shugart's records greatest weight because of the "longitudinal treatment relationship with" the Plaintiff as a surgeon beginning before January 2007 and continuing through August 2014. (Id.)

         The ALJ noted that Dr. Shugart saw the Plaintiff in January 2007 for post L5-S1 fusion follow-up, noting that the Plaintiff was doing well (Id.) The ALJ noted that the Plaintiff's surgical instrumentation looked good on x-ray and that Dr. Shugart released the Plaintiff to regular activities. (Id.) The ALJ noted that the Plaintiff returned in June 2011, complaining of constant sharp and deep neck and bilateral shoulder pain. (Id.) The ALJ noted that in response to the Plaintiff's complaints, Dr. Shugart ordered an MRI evaluation and, based on its results, Dr. Shugart operated on her neck in July 2011 (Id.) The ALJ noted that post-surgical x-rays taken in September 2012 again showed that the plate and graft were in good position and that Dr. Shugart ordered physical therapy for shoulder tightness. (Id.)

         The ALJ noted that when the Plaintiff returned in May 2012 and complained of increased neck, and right arm pain, Dr. Shugart ordered a CT scan, and after reviewing it, assessed that the Plaintiff did not have pseudo-arthrosis and her issues were probably inflammatory. (Id.) The ALJ noted that at follow-up in September 2012, the Plaintiff still had myofascial pain likely due to ...

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