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Atkinson v. Commissioner of Social Security

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

September 28, 2017

CHRISTOPHER A. ATKINSON, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, sued as Nancy A. Berryhill, [1] Acting Commissioner of SSA, Defendant.

          OPINION AND ORDER

          Susan Collins, United States Magistrate Judge

         Plaintiff Christopher A. Atkinson appeals to the district court from a final decision of the Commissioner of Social Security (“Commissioner”) denying his 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.

         I. PROCEDURAL HISTORY

         Atkinson applied for DIB in February 2013, alleging disability as of September 29, 2012. (DE 9 Administrative Record (“AR”) 158-59). The Commissioner denied Atkinson's application initially and upon reconsideration. (AR 106-12). After a timely request, a hearing was held on July 17, 2014, before Administrative Law Judge William D. Pierson (“the ALJ”), at which Atkinson, who was represented by counsel; his mother; and a vocational expert, Sandy Steele (the “VE”), testified. (AR 30-80). On November 13, 2014, the ALJ rendered an unfavorable decision to Atkinson, concluding that he was not disabled because he could perform a significant number of unskilled, sedentary jobs in the economy despite the limitations caused by his impairments. (AR 14-25). The Appeals Council denied Atkinson's request for review (AR 1-8), at which point the ALJ's decision became the final decision of the Commissioner. See 20 C.F.R. § 404.981.

         Atkinson filed a complaint with this Court on May 16, 2016, seeking relief from the Commissioner's decision. (DE 1). Atkinson's sole argument on appeal is that the ALJ improperly evaluated his symptom testimony. (DE 17 at 8-12).

         II. FACTUAL BACKGROUND[3]

         At the time of the ALJ's decision, Atkinson was 41 years old (AR 25, 174); had a high school education and one year of college (AR 37, 187); and had worked as a pharmacy technician at a hospital from 1995 to 2012. (AR 177, 242). Atkinson alleges disability due to left leg amputation above the knee, with phantom pain; residuals of left extremity fractures; depression; and anxiety. (DE 17 at 2).

         A. Atkinson's Testimony at the Hearing

         At the hearing, Atkinson testified as follows: He was single and had recently applied for Medicaid. (AR 36-37). His mother had driven him to the hearing, as he had an expired license. (AR 37). He had not consumed alcohol in the last year. (AR 43). He performs light household tasks, such as cooking in the microwave or on the grill and doing small loads of laundry. (AR 49, 54). He can hold a cup with his left hand, but has difficulty bending his arm to drink from the cup; he is able to use utensils. (AR 50). He is able to help with yard work by trimming small branches and riding the lawn mower. (AR 53-54). Atkinson rarely left home in the first seven months after his September 2012 motor vehicle accident; his ability to leave home has improved since then, but he still does not go out in public very often. (AR 44, 47-78, 57-58, 66). He visits a few friends or his brother every few weeks, depending on others for transportation. (AR 45-46, 57-58).

         Atkinson cited limitations in his non-dominant, left upper extremity as a reason for his disability application. (AR 48). He explained that he had fractured his arm in three places in the accident, and one of the fractures still had not healed because “it looked like the bone ends had died.” (AR 48, 51). He had not, however, seen a doctor for his arm or had an X-ray in the past 17 months. (AR 48). He has left arm pain with every movement, numbness down his arm, elbow stiffness, limitation in his arm range of motion, and tingling in his fingers; consequently, he primarily uses his dominant, right upper extremity for tasks. (AR 48, 51-52, 59, 63). On a 10-point scale, he rated his arm pain as a “three or four” with medication and a “five” without medication. (AR 52-53). His pain worsens with strenuous work. (AR 53). Physical therapy had given him a home exercise program because he could not afford to attend physical therapy regularly. (AR 42). He estimated that he could lift 20 pounds with his right hand, five pounds with his left hand, and 10 pounds with both hands. (AR 58, 63). He could use his left hand for light activity for about 15 to 20 minutes but then would need to rest it for an hour. (AR 64).

         Atkinson also complained of experiencing constant phantom pain as a result of his left leg amputation. (AR 55). The pain intensity varies with activity; the more activity, the more intense the phantom pain. (AR 55). When he mows the lawn, he has to take a break halfway through to massage his stump because the vibration from the mower irritates it. (AR 55). If he over exerts himself in one day, he will need the next day to recuperate. (AR 47). He has difficulty sleeping due to phantom pain that keeps him up most of the night. (AR 45). He takes Neurontin for his phantom pain, which is somewhat helpful. (AR 55-56). He estimated that he could stand for 30 minutes, sit for one hour, and walk for 100 feet; if he walks on uneven ground or farther than 100 feet, he uses a cane. (AR 56-57, 59, 66). He has to remove his prosthesis and massage his stump intermittently throughout the day; he also sits with his stump elevated, such as in a recliner, for an hour of every day for pain relief. (AR 65). At least one to two days week, he has to go without his prosthesis due to phantom pain and sores on his stump; on those days he uses crutches. (AR 65-66).

         Additionally, Atkinson complained of depression, but conceded that it is much better when taking his medication. (AR 44). He has also experienced anxiety since the accident. (AR 44, 47). He complained of inability to concentrate due to his phantom pain and daytime drowsiness as a side effect of his medications. (AR 46, 62). He estimated that he would probably be unable to concentrate for at least one to two hours in an eight-hour workday.[4] (AR 63).

         B. Summary of the Relevant Medical Evidence

         Atkinson was injured in a motor vehicle accident in September 2012. (AR 505). He underwent surgeries relating to the left proximal tibia/fibula synostosis joint, a proximal ulna fracture, a complex fracture-dislocation left elbow, and a left below-knee amputation with secondary closure.[5] (AR 505).

         On November 15, 2012, Atkinson visited Dr. Jason Heisler at Ortho Northeast, who observed that Atkinson's condition had significantly improved. (AR 516). Dr. Heisler estimated that Atkinson could return to work on December 3, 2012, with modified duties of “sitting work only and no left handed work.” (AR 516).

         On January 3, 2013, Atkinson returned to Dr. Heisler, who indicated that Atkinson's condition had slightly improved. (AR 517). Atkinson reported a dull, achy pain ranging from a “four” to a “seven” on a 10-point scale. (AR 517). The pain occurred intermittently and with activity, and his left shoulder had become quite painful. (AR 517). His sensation was normal. (AR 518). He was instructed to be weightbearing and to do activity as tolerated. (AR 518). Later that month, Atkinson underwent repair of his left olecranon for non-union of ulna with compression and removal of the orthopedic implant. (AR 520). Atkinson returned to Dr. Heisler on January 22, 2013, reporting an intermittent sharp, burning, and stabbing pain that increased with activity, which ranged from a “four” to a “six” on a 10-point scale. (AR 523). Dr. Heisler assessed that Atkinson's condition had moderately improved, and he estimated that Atkinson could return to work without restrictions within two months. (AR 523-24).

         On January 7, 2013, Atkinson saw Dr. Shankaran Srikanth to request a prescription for Neurontin for his phantom pain. (AR 528). Dr. Srikanth prescribed the medication and assessed Atkinson with phantom-pain syndrome. (AR 528). Atkinson returned to Dr. Srikanth on February 20, 2013, to discuss management of his depression and his pain. (AR 530). He was taking Tramadol, but it was not providing enough pain relief so he was also taking some Norco. (AR 530). Dr. Srikanth stopped the Neurontin, and prescribed Gabapentin and Norco. (AR 530). Dr. Srikanth assessed Atkinson's depression as fairly severe and referred him to Dr. M.S. Kamal, a psychiatrist. (AR 530).

         On March 8, 2013, Atkinson was evaluated by Dr. Kamal, reporting worsening depression, severe anxiety, difficulty sleeping, and not wanting to leave home. (AR 570). He was a past alcoholic, but had been sober since the accident. (AR 570). He denied current suicidal or homicidal ideation. (AR 570). A mental status exam revealed decreased psychomotor activity; a tearful appearance, depressed mood, and restricted affect; and fair cognition, memory, and insight. (AR 570-71). Dr. Kamal diagnosed him with a major depressive episode, single severe; and a history of alcohol abuse, in remission. (AR 571). Dr. Kamal assigned a Global Assessment of Functioning (“GAF”) score of 50 and started Atkinson on Wellbutrin and Remeron.[6] (AR 571). On March 22, 2013, Atkinson told Dr. Kamal that he was tolerating his medications well, but that he felt worthless. (AR 568). Dr. Kamal explained to Atkinson that the medications take some time to be fully effective. (AR 568).

         On March 28, 2013, Atkinson returned to Dr. Heisler, reporting intermittent arm pain of variable intensity. (AR 548-49). Dr. Heisler assessed that Atkinson's condition had significantly improved. (AR 548). Dr. Heisler examined X-rays of Atkinson's left elbow, stating that they showed a “slow progression of healing.” (AR 549). Atkinson had minimal swelling and tenderness of his left elbow; his sensation was normal. (AR 549). Dr. Heisler instructed Atkinson to engage in weightbearing and activity as tolerated and to use a bone stimulator. (AR 549). He released Atkinson to return to work with the following restrictions: alternate sitting and standing, splitting his day evenly between the two positions; and may occasionally lift and carry up to 10 pounds. (AR 549). Atkinson was to return in two months after having new X-rays of his left elbow. (AR 549).

         On April 15, 2013, Atkinson visited Dr. Kamal for a follow-up on his depression. (AR 566). Atkinson reported that he was still quite depressed, had sleeping problems, and did not want to leave home. (AR 566-57). He appeared a little tense and emotional. (AR 566). Dr. Kamal's diagnoses were major depressive disorder, single episode, no psychotic behavior; and alcohol abuse, nondependent, unspecified duration. (AR 566).

         On April 18, 2013, Atkinson underwent a psychological evaluation by Dr. Ceola Berry at the request of the state agency. (AR 550-52). Atkinson's mood was dysthymic, and he admitted to problems with affect regulation. (AR 550). He reported debilitating depression, anxiety, and anger, describing himself as hypersensitive to criticism with gross feelings of inadequacy. (AR 550). He had adequate concentration and attention to task. (AR 551). He endorsed suicidal ideation, but did not have plan; he denied homicidal ideation, delusions, hallucinations, and obsessive-compulsive preoccupation. (AR 551). He described himself as nervous, anxious, tense, and easily annoyed. (AR 551). The results of the mental status examination did not reveal any significant problems with concentration, short-term memory, mental calculations, abstracting ability, general knowledge, or judgment. (AR 551-52). His energy level was low, and he reported reacting with depression, anxiety, and irritability prompted by nonrestorative sleep secondary to his chronic pain. (AR 552). Dr. Berry concluded that Atkinson's ability to work “would be primarily affected by his perceived physical limitations and secondarily by mood states.” (AR 552). She assigned him diagnoses of a major depressive disorder and a mood disorder due to his medical conditions and a GAF score of 50. (AR 552).

         On April 20, 2013, Dr. James Chan examined Atkinson at the request of the state agency. (AR 554-60). Atkinson reported that he still had significant pain, which worsened at night. (AR 554). On physical exam, Atkinson demonstrated a slow, unsteady gait without a cane. (AR 557). When corrected with a cane, he had a normal posture, and his gait was sustainable and stable. (AR 557). No ataxia, antalgia, circumduction, or lurching was observed. (AR 577). He was able to get on and off the table without assistance. (AR 557). He was able to walk on heels and toes, tandem walk, and squat; straight-leg raise tests were normal in both sitting and supine. (AR 557). He had 4/5 strength in his left shoulder abduction, external rotation, and internal rotation; a mildly positive impingement sign was observed. (AR 557). He had good hip range of motion and strength, and normal muscle tone, grip strength, and reflexes. (AR 557). His left upper extremity sensation was intact. (AR 557). Dr. Chan indicated that Atkinson's fine finger skills with his left hand were “[a]bnormal, ” but that he was still able to pick up a coin and keys, button a shirt, use a zipper, open a door or a jar, and write with a pen. (AR 560). However, he could not do these fine finger skills “repetitively.” (AR 560). Dr. Chan opined: (1) that physical therapy services would help to improve Atkinson's strength and range of motion, assist with ambulation, and reduce his phantom pain; (2) that he should continue to use his cane for improved stability while walking; and (3) that increasing his Zoloft dosage may help control his depressed mood. (AR 558).

         On April 29 2013, Atkinson reported to Dr. Kamal that he felt much more relaxed and had more energy. (AR 564). His sleep had improved, and he was going out more socially. (AR 564). Dr. Kamal found that Atkinson seemed to be doing much better, noting that he appeared more relaxed and was relating well; he was not emotional or tearful; and he had “a happy and satisfied look.” (AR 564).

         On April 30, 2013, Kenneth Neville, Ph.D., a state agency psychologist, reviewed Atkinson's record and completed a mental residual functional capacity (“RFC”) assessment. (AR 87-89). He concluded that Atkinson was moderately limited in: (1) maintaining attention and concentration for an extended period; and (2) completing a normal workday and workweek without interruptions from psychologically-based symptoms and performing at a consistent pace without an unreasonable number and length of rest periods. (AR 89). In his narrative, Dr. Neville further assessed that Atkinson had mild limitations in activities of daily living and in maintaining social interaction; and moderate limitations in maintaining concentration, persistence, or pace. (AR 89). Dr. Neville concluded that Atkinson “retains capacity to carry out semi-skilled tasks on a sustained basis in a competitive setting not requiring a rapid pace or intense concentration.” (AR 89). On June 11, 2013, another state agency psychologist, William Shipley, Ph.D., affirmed Dr. Neville's opinion. (AR 101-02).

         Also on April 30, 2013, Dr. A. Dobson, a state agency physician, reviewed Atkinson's record and concluded that he could lift less than 10 pounds frequently and 10 pounds occasionally; stand or walk six hours in an eight-hour workday; sit six hours in an eight-hour workday; occasionally balance, stoop, crouch, crawl, and climb ramps and stairs, but never climb ladders, ropes, or scaffolds; and must avoid moderate exposure to wet, uneven surfaces and hazards such as machinery and unprotected heights. (AR 86-88). On June 11, 2013, another state agency physician, Dr. J. Sands, affirmed Dr. Dobson's opinion. (AR 99-101).

         On July 5, 2013, Atkinson reported to Dr. Kamal that things were going very well for him compared to when he first started seeing Dr. Kamal, estimating that he felt “overall 90% better” and that it was a “complete turnaround.” (AR 592). Dr. Kamal agreed that Atkinson was “doing very well.” (AR 592).

         On August 22, 2013, Atkinson returned to Dr. Srikanth, reporting that he was doing well and that Neurontin was working well for him. (AR 574). Dr. Srikanth found that Atkinson was stable overall and had adequate pain control, though he was looking to get a second opinion about his elbow pain. (AR 575).

         On September 5, 2013, Atkinson told Dr. Kamal that things were going much better for him, that he had experienced a good summer, and that he had been going out quite a bit. (AR 591). Dr. Kamal renewed his prescriptions. (AR 591).

         On February 20, 2014, Atkinson returned to Dr. Srikanth for a follow-up on his phantom-limb pain. (AR 594). He reported that he was doing okay, but that Neurontin was helping him only half of the time. (AR 594). Accordingly, Dr. Srikanth increased his dosage of Neurontin and Gabapentin. (AR 594).

         On July 16, 2014, Elvira Wallen, a physical therapist, completed a medical assessment form on Atkinson's behalf. (AR 596-99). Ms. Wallen opined that in an eight-hour workday, Atkinson could sit for one hour at a time and for one hour total; stand for 10 minutes at a time and one hour total; and walk for 10 minutes at a time and one hour total. (AR 596). She noted that Atkinson's prosthesis was ill fitting and that he usually uses a cane when ambulating on uneven surfaces or outside, but when indoors he uses furniture to stabilize himself. (AR 596). She found that he would be unable to walk on uneven surfaces at a reasonable pace for one block. (AR 596). Ms. Wallen further found that Atkinson could frequently twist and climb stairs; occasionally bend, squat, crouch, crawl, stoop, and balance, but never kneel or climb ladders; and must avoid unprotected heights, moving machinery, vibrations, humidity, and walking on rough ground. (AR 596-97). With his left hand, he could grip, grasp, and perform gross manipulation on a “frequent” basis. (AR 597). He could perform fine manipulation with his left hand on an “occasional” basis. (AR 597). He could lift or reach with his left arm one to two times in an eight-hour workday. (AR 597). A three-trial test of his grip strength was 105, 100, and 99 pounds on the right, and 80, 70, and 79 pounds on the left. (AR 597). A ...


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