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Hughes v. Berryhill

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

December 13, 2017

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


          Michael G. Gotsch, Sr. United States Magistrate Judge

         On October 12, 2016, Plaintiff, Sherry Ann Hughes ("Hughes") filed a complaint in this Court. In her complaint, Hughes is seeking to vacate the Social Security Commissioner's final decision to deny her application for disability benefits and remand the matter for further administrative proceedings, to include a de novo hearing and decision.

         Hughes filed her opening brief on February 20, 2017, and the Commissioner of Social Security ("Commissioner") filed a response on June 2, 2017 asking the Court to affirm the agency's decision to deny benefits. This matter became ripe on June 16, 2017 when Hughes filed her reply brief. This Court may enter a ruling in this matter based on the parties' consent under 28 U.S.C. § 636(c), and 42 U.S.C. § 405(g).

         I. Procedure

         On March 19, 2013, Hughes filed an application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") pursuant to 42 U.S.C. §§ 416(i), 423 alleging an onset date beginning May 18, 2012. The Social Security Administration ("SSA") denied Hughes' application initially on June 4, 2013, and again upon reconsideration on September 20, 2013. Upon Hughes' request, a hearing was held before an administrative law judge ("ALJ") on April 13, 2015, in which Hughes and an impartial vocational expert testified. On April 30, 2015, the ALJ issued his decision finding that Hughes was not disabled at Step Five of the evaluation process and denied her application for benefits. On August 12, 2016, the Appeals Council denied Hughes' request for review, making the ALJ's decision the final decision of the Commissioner. Hughes then sought judicial review of the Commissioner's final decision pursuant to 42 U.S.C. § 405(g) by filing her complaint in this Court on October 12, 2016.

         II. Relevant Background

         Hughes was born on May 3, 1961, and was 51 years old on the alleged disability onset date. Hughes is seeking disability benefits based upon degenerative disc disease, chronic obstructive pulmonary disease ("COPD"), depression, anxiety, and sciatica.

         A. Plaintiffs Testimony

         At the hearing before the ALJ, Hughes testified that she believes she cannot work due to the intensity and persistence of her pain. She stated that she could only stand for five to ten minutes at time and only sit for twenty to thirty minutes at a time. Thus, she testified that she must constantly shift between sitting and standing. She stated that she could not walk long distances and estimated that she could only walk about ten feet at a time. Hughes testified that at times she feels pain and numbness in her hands, which sometimes causes her to drop things. She stated that she is unable to stoop or squat and has trouble getting off the floor, but that she is able to bend to touch her knees. On a ten-point scale, Hughes described her pain as a five or six out often with medication and an eight or nine out often without medication. She stated that her pain is constant. She confirmed that she is taking Lyrica and hydrocodone for pain, and other medications for her COPD and depression.

         Hughes also testified that she was capable of independently performing some housework and errands. She stated that she drove about twice a week to doctor's appointments and the grocery store. When grocery shopping, she stated that she uses a motorized cart because she cannot walk from the front of the store to the back. She testified that she splits household chores with her boyfriend, but that she has to work in shifts due to her pain. She also testified that she cannot open jars but that she is able to lift a gallon of milk with one hand and move it a short distance.

         Hughes stated that she is a candidate for surgery to relieve some of her back pain but that she has not been able to quit smoking, which is necessary for the surgery to be performed. She testified that her multiple attempts to quit, including the use of Chantix, have failed.

         B. Medical Evidence

         1.Treatment History

         In May of 2010, Hughes began seeking treatment for chronic back pain. On May 5, 2010, a nurse practitioner examined Hughes for left buttock and thigh pain, potentially related to chronic back pain. [DE 15 at 3]. This examination found no tenderness on palpation and a straight leg test was negative. [Id.]. However, on May 12, 2010, a primary care physician, Bryan Holm, M.D., examined Hughes and found pain and tenderness along her lower spine and performed a straight leg test that was positive. [Id.]. Dr. Holm diagnosed Hughes with lumbar disc degeneration and prescribed medicine for her pain. [Id.]. At a follow up visit with Dr. Holm on May 26, 2010, Dr. Holm noted that Hughes' pain and tenderness had improved, but a straight leg test was still positive on both legs. [Id.].

         On January 24, 2012, Hughes sought treatment from Jon Shull, M.D., for lower back pain as well as shooting and stabbing pain radiating down her left leg. [Id.]. Dr. Shull noted tenderness on palpation in Hughes' medium and lower back and performed a straight leg test, which was positive on her left leg. [Id.]. Dr. Shull also diagnosed Hughes with degenerative disc disease, prescribed new pain medication, and referred Hughes to physical therapy. [Id.]. At a follow-up appointment with Dr. Shull on March 13, 2012, another straight leg test performed on Hughes' left leg was positive. [Id. at 4]. On December 22, 2012, Hughes sought emergency room treatment for fever and body aches. [Id.]. The emergency room doctor noted tenderness to palpation across Hughes' back, but performed a straight leg test with negative results. [Id.].

         On June 27, 2013, Hughes began receiving treatment with Keyna Martinez, M.D., for chronic back pain, with shooting pain in her left leg and buttocks, depression, menopause, anxiety, and COPD. [Id.]. Dr. Martinez diagnosed Hughes with degenerative joint disorder, menopause, COPD bronchitis, depression, and insomnia; Dr. Martinez also prescribed medication and referred Hughes to physical therapy. [Id.]. On July 17, 2013, Hughes' spine was X-rayed revealing Grade I spondylolisthesis of the L4 and L5 secondary to degenerative arthropathy, mild disc space narrowing, and facet degenerative hypertrophy at the lumbosacral junction. [Id.]. This prompted Dr. Martinez to, once again, refer Hughes to physical therapy on July29, 2013. [Id.].

         Hughes began physical therapy on September 9, 2013. [Id. at 5]. At her initial physical therapy evaluation, her physical therapist, Leslie Fuchs, DPT, noted sharp back pain, limited rotation, diminished reflexes on Hughes' left side, tenderness to palpation, which was stronger on the left side of Hughes' back, and positive straight leg and slump tests. [Id.]. Hughes was unable to meet any of her goals through five physical therapy appointments, so she was recommended continued therapy and referred to a specialist. [Id.].

         Another X-ray, conducted on October 16, 2013, revealed that Hughes had Grade I approaching Grade II anterolisthesis of the L4 relative to L5 and mild disc space narrowing at the L4-L5 level. [Id.]. An MRI, performed on January 30, 2014, showed chronic severe degenerative facet joint arthropathies at ¶ 4-L5 with Grade II spondylolisthesis, moderately severe spinal canal stenosis at ¶ 5, and early degenerative facet joint arthropathy at ¶ 2-L3 ...

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