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Nichols v. Berryhill

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

September 14, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          JON E. DEGUILIO Judge

         This is Plaintiff Johnny Nichols' second time before this Court appealing the denial of benefits. With respect to the first appeal, the magistrate judge remanded the case indicating that the ALJ failed to adequately discuss whether Nichols' back impairments met a Listing, and noted that on remand the ALJ should expound upon the credibility analysis consistent with SSR 96-7p. Nichols v. Colvin, No. 313-CV-01205-CAN, 2015 WL 196379 (N.D. Ind. Jan. 13, 2015). In response, the Appeals Council remanded the case for further administrative proceedings consistent with the Court's order. R. at 422-24.

         Supplemental hearings were then held before newly assigned Administrative Law Judge Mario Silva (“ALJ”). On February 19, 2016, the ALJ relied on the testimony of vocational expert Carrie Anderson (“VE”) in finding that Nichols was capable of performing other work in the economy and was therefore not disabled. On May 3, 2016, Nichols 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]. Because the VE's testimony with respect to stooping was inconsistent with the social security regulations, remand is required to resolve this inconsistency. Further necessitating remand, is the ALJ's errors with respect to determining Nichols' residual functional capacity. For these reasons, as detailed below, the Court remands this matter to the Commissioner for further proceedings.

         I. FACTS

         Nichols alleges that he has been disabled since January 1, 2015, due to chronic low back pain caused by degenerative disc disease with radiculopathy.[1] Nichols worked for twenty-five years as a core setter, lifting iron weighing over two hundred and fifty pounds. He had to quit his job in January 2011, because of his back pain. Thereafter, Nichols attempted to work as a packer and kitchen supervisor because he needed the income. But despite taking extra pain medication to get through the workday, the pain was intolerable and he could not sustain the work.

         Medical records from 2008 through September 2015 document his repeated visits and treatment for back pain by various doctors, including his treating physician, Dr. Vidya Kora. In 2008, an MRI revealed that Nichols had a degenerative disc protrusion at ¶ 5-S1 extending posteriorly into the left lateral recess causing nerve root impingement and degenerative changes in the L4-L5 intervertebral disc space. R. at 180. The following month, Nichols was diagnosed with a lumbar herniated disc with foot drop. R. at 187. He received a lumbar epidural injection of steroids and was referred for physical therapy. R. at 178, 187, 201.

         Nichols continued to complain of back pain despite receiving physical therapy. R. at 200. In January 2010, Dr. Kora diagnosed Nichols with degenerative joint disease of the lumbosacral spine and left sided sciatica. R. at 200.

         In June 2011, Nichols underwent a consultative examination by Dr. M. Korman, MD. Dr. Korman noted that Nichols complained of frequent headaches and had a limited range of motion in his cervical, lumbar, and thoracic spine. R. 208-13. Dr. Korman reported that Nichols' forward flexion of the lumbar spine was 40 degrees (with normal being 90), while his extension was 15 (with normal being 25), and his lateral flexion was 15 on both right and left sides (with normal being 25). Dr. Korman documented that Nichols had tenderness in the spinal and paraspinal regions.

         In August 2011, Nichols presented with complaints of exacerbated low back pain and it was noted that he had lumbosacral palpable tenderness and paraspinal spasm. R. at 247. He was diagnosed with exacerbation of low back pain, lumbosacral radiculitis, and degenerative disc disease. From October 2011 through April 2012, Nichols continued to treat with Dr. Kora for back, hip, leg, and joint point, joint swelling, and headaches. R. at 253-56. On April 16, 2012, Dr. Kora prescribed Nichols a cane. R. at 253.

         On May 17, 2012, Dr. Kora completed a medical source statement and opined that Nichols could never regularly lift more than ten pounds. R. at 257-61. Dr. Kora believed that Nichols could stand and/or walk for less than two hours and could sit for less than six hours in a workday due to his severe back pain marked by muscle spasms and positive bilateral straight leg raising tests. Dr. Kora concluded that Nichols could never kneel, crouch, crawl or stoop. She opined that his condition was permanent and referred Nichols to an orthopedic surgeon. R. at 262.

         From June 2012 through April 2015, Nichols continued to treat with Dr. Kora for hypertension, osteoarthritis, back pain, and depression. R. 603-58. Treatment notes from January 2013 through November 2013, described Nichols as complaining of back pain and needing refills on his medication. R. at 627-48. His musculoskeletal and neurological examinations were normal, but he was diagnosed with back pain and osteoarthritis. Nichols' medical records from September 2014 through April 2015, demonstrate that Nichols consistently suffered from back spasms and was on narcotic pain medication. R. at 603-18. Lumbar spine imaging from September 2014 revealed mild degenerative changes to the lower lumbar spine. R. at 661.

         During an orthopedic evaluation on November 6, 2014, Nichols complained of back pain which radiated into his left leg and was marked by numbness, tingling, and weakness. R. at 587-91. He rated the pain at an eight (on a scale of one to ten) and indicated that the pain was worse with weather, bending, sitting, getting up from a seated position, and standing. Nichols weighed 235 pounds and had a body mass index (“BMI”) of 32.79 kg/m2.[2] Dr. T. Ryan, DO, observed abnormal gait and bilateral paralumbar tenderness. Dr. Ryan diagnosed Nichols with low back pain, likely secondary to degenerative disc disease L4/L5 and L5/S1 and scheduled a lumbar MRI.

         Dr. Kora completed another medical source statement on August 10, 2015. R. at 598-602. Dr. Kora diagnosed Nichols with back pain, degenerative joint disease, and sciatica. Positive objective signs were lumbar muscle spasm and positive supine straight leg raising test. Dr. Kora opined that Nichols could sit for fifteen minutes at a time for a total of less than two hours and stand/walk for ten minutes at a time for a total of less than two hours in a workday. Dr. Kora noted that Nichols required a cane to stand or walk. She also indicated that Nichols would need a job that permitted shifting position at-will from sitting, standing, and walking, and that he would need a fifteen minute unscheduled break every hour. She did not believe that Nichols could lift and carry even ten pounds in a competitive work situation. Dr. Kora also assessed that Nichols must never twist, stoop, bend, crouch, squat, or climb ladders. She indicated that Nichols would be off task for twenty percent of the workday due to his symptoms and he was incapable of even “low stress” work.

         Nichols underwent another consultative examination on September 22, 2015. R. at 662-73. Consultative examiner J. Smejkal, MD, noted that Nichols complained of severe back pain which radiated down his left leg and required him to walk with a prescribed cane. Nichols described experiencing difficulties in daily activities due to limited mobility. On examination, Dr. Smejkal noted that there was spinous and paraspinal tenderness in the lumbar region, and that Nichols was only able to stoop and squat with difficulty. Dr. Smejkal opined that Nichols could occasionally lift/carry up to fifty pounds, frequently lift/carry up to twenty pounds, sit for six hours, stand for one hour, and walk for one hour during a workday. Dr. Smejkal concluded that Nichols required the use of a cane to ambulate and could never climb ladders or scaffolds, balance, stoop, kneel, crouch or crawl. He believed that Nichols' limitations had lasted for longer than twelve consecutive months.

         On September 3, 2015, testimony was received from the claimant and neurologist Dr. Karl Manders (an impartial medical expert) (“ME”). R at 333-82. After the hearing, ALJ Silva sent Nichols for the consultative examination with Dr. J. Smejkal. Thereafter, ALJ Silva conducted another hearing on January 11, 2016, during which the claimant and VE testified. R. at 298-332.

         Nichols testified that he tried working several jobs since 2011 by taking extra pain medication and unscheduled breaks, but he was unable to withstand the pain. Because he was covered by a high deductible insurance plan through his wife, Nichols indicated that he could not afford to get the MRI that Dr. Ryan had scheduled. Nor could Nichols afford to continue treatment with the specialist. Nichols indicated that he was advised that having surgery would likely provide no benefit because of his existing arthritis. Nichols testified that he can sit for five to twenty minutes and stand for fifteen to twenty minutes before his pain is unbearable. He testified that he cannot bend or stoop because he cannot get back up on account of his back pain. He is also unable to drive.

         The ME testified that based on his review of the medical records, Nichols' back problems did not meet the requirements of any Listing; however, Nichols did have documented back pain and reduced range of motion in the lumbar spine. Dr. Manders opined that Nichols could perform work that included lifting/carrying ten pounds frequently and twenty pounds occasionally. He believed that Nichols was capable of sitting for eight hours, so long as he had a sit-stand option in order to stretch and relieve the pain every hour. He indicated that Nichols would need “ergonomic changes” in his sitting position and work environment which would be “very significant in allowing him to do the work, and that may be necessary for him to be employed successfully in some occupations.” Dr. Manders clarified that whether or not certain ergonomic accommodations were needed would “depend[] on the job.” Dr. Manders further opined that Nichols could stand for fifteen to twenty minutes per hour for a total of two hours. However, Nichols would have to avoid repetitive bending, twisting, or climbing of stairs, and he could not crouch, crawl, or climb ladders, ropes, or scaffolds due to the arthritis in his back. Dr. Manders did not believe that a cane was required from an anatomic standpoint, but he opined that it would make standing more comfortable for Nichols.

         The VE testified that based strictly on the (relevant) hypothetical posed to her (which offered an assigned residual functional capacity (“RFC”)[3] of sedentary work, with the ability to lift/carry fifty pounds occasionally and twenty pounds frequently, sit for six hours, stand for one hour, and walk for one hour with a cane for ambulation, with the added limitations of no climbing of ladders, ropes, and scaffolds, no crouching or crawling, occasional balancing, kneeling, stooping, and climbing of ramps/stairs, occasional pushing/pulling bilaterally, avoiding occasional exposure to hazards and frequent exposure to humidity, wetness, and pulmonary irritants, but with the added ability to frequently operate a motor vehicle, operate foot controls, and use the upper extremities), Nichols would not be able to perform his past work. However, the VE opined that Nichols could still perform other work in the economy, such as work as a surveillance monitor, order clerk, and final assembler. The VE confirmed that, generally speaking, a person cannot maintain competitive work if he would be off-task more than ten percent of the workday. Per the VE, the Dictionary of Occupational Titles (“DOT”) indicates that stooping only occurs from a standing position, but not from a seated position. Thus, the VE testified that there is no “stooping required in sedentary jobs.”

         The ALJ issued a decision on February 19, 2016, denying Nichols disability benefits and concluding that Nichols was not disabled under the Social Security Act because he was able to perform other work in the national economy (step 5). Nichols did not file exceptions to the ALJ's decision, thereby making the ALJ's decision the final determination of the Commissioner. 20 C.F.R. § 404.984(d). Nichols seeks review of the ...

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