United States District Court, N.D. Indiana, Fort Wayne Division
CHRISTOPHER A. ATKINSON, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, sued as Nancy A. Berryhill,  Acting Commissioner of SSA, Defendant.
OPINION AND ORDER
Collins, United States Magistrate Judge
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”). (DE 1). For the following reasons, the
Commissioner's decision will be AFFIRMED.
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. §
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).
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).
Atkinson's Testimony at the Hearing
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).
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.
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).
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. (AR 63).
Summary of the Relevant Medical Evidence
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. (AR 505).
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).
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).
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).
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. (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).
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).
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
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).
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).
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).
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.
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).
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).
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
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).
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).
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 ...