United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
Michael G. Gotsch, Sr. United States Magistrate Judge
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.
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).
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.
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,
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.
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.
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.
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.].
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.
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.].
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.
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 ...