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Bergner v. Commissioner of Social Security

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

December 14, 2017

MARK D. BERGNER, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, sued as Carolyn W. Colvin, Acting Commissioner of SSA, [1] Defendant.


          Susan Collins, United States Magistrate Judge.

         Plaintiff Mark D. Bergner appeals to the district court from a final decision of the Commissioner of Social Security (the “Commissioner”) denying his application under the Social Security Act (the “Act”) for disability insurance benefits (“DIB”) and supplemental security income benefits (“SSI”).[2] (See DE 1). For the following reasons, the Commissioner's decision will be REMANDED.


         On August 3, 2009, Bergner filed his applications for DIB and SSI, alleging disability as of July 1, 2006. (DE 8 Administrative Record (“AR”) 169-80). Bergner's application was denied on November 13, 2009 (AR 113-20), and he did not request a review of the denial. On August 31, 2012, Bergner filed a second application for DIB, alleging the same onset date of July 1, 2006. (AR 18, 179-85). This application was denied on December 7, 2012, and was again denied upon reconsideration on February 26, 2013. (AR 18). Bergner filed a request for a hearing before an Administrative Law Judge, and Administrative Law Judge Patricia Melvin (the “ALJ”) held a hearing on March 18, 2014, at which Bergner and Robert Stephen Barkhaus, a vocational expert (the “VE”), testified. (AR 37-81). Bergner was represented by attorney Ann Trzynka at the hearing. (AR 37). On June 17, 2013, the ALJ issued an unfavorable decision, finding that Bergner was not disabled as defined in the Act. (AR 15-36). Bergner requested that the Appeals Council review the ALJ's decision (AR 14), and the Appeals Council denied his request, making the ALJ's decision the final, appealable decision of the Commissioner (AR 1-6).

         Bergner filed a complaint with this Court on December 15, 2015, seeking relief from the Commissioner's final decision. (DE 1). In his appeal, Bergner alleges that the ALJ erred by: (1) failing to consider evidence that Bergner's condition equaled impairment Listings 4.12, 11.14, and 1.02; (2) failing to assign appropriate weight to the opinion of Dr. H.M. Bacchus, Jr., in her residual functional capacity (“RFC”) determination; (3) failing to incorporate evidence of Bergner's limitations in her hypothetical question to the VE; and (4) failing to assign appropriate weight to Bergner's symptom testimony. (DE 14 at 13-25).


A. Background

         Bergner was 46 years old as of the alleged onset date, and 54 years old as of the date of the ALJ's decision.[4] He has a high-school education and was not working at the time of the administrative hearing. (AR 41). His employment history includes work in unskilled and semi- skilled positions. (AR 42-45).

         B. Bergner's Testimony at the Hearing

         At the hearing Bergner testified as follows: Bergner lives alone; he is not married and has no children. (AR 41). He is approximately five-foot seven-inches tall, and weighs about 190 pounds. (AR 41). While in high school, Bergner received vocational experience in building trades. (AR 41). Bergner does not have any source of income; Park Center paid his rent and utilities, and he receives food stamps and Medicaid. (AR 41-42). From 1999 to approximately 2006, Bergner worked at a variety of jobs that required him to occasionally lift more than 20 pounds; each job lasted between six months and two years, and he was fired from each position. (AR 42-45). He last worked in 2010 or 2011. (AR 42). Bergner has had trouble getting along with coworkers and supervisors in the past. (AR 59).

         Bergner was not looking for work. (AR 45). He claimed that two physical impairments prevent him from working: he needs a knee replacement and complications from neuropathy. (AR 45). Neuropathy causes numbness, sharp shooting pain, and throbbing pain in both feet but it mainly affects his left foot. (AR 45; see also AR 69). Bergner started to experience problems from neuropathy in 2011. (AR 45). The longer Bergner stands, the more his feet go numb, however, his feet cramp or become numb even while he is sitting. (AR 68-69). The pain can last for hours, but it mostly occurs at night. (AR 46). On a scale of zero to 10, with zero being no pain and 10 being a trip to the emergency room, Bergner rated the pain in his feet as an eight during the day and a six at night. (AR 46). Bergner takes Tramadol for the pain, and Mobic and Robaxin for arthritis. (AR 46, 48). The Tramadol is somewhat effective, reducing the pain in his feet to a seven during the day and to a five at night. (AR 47). Bergner's pain subsides when he soaks his feet in the bathtub or elevates his feet. (AR 48).

         Bergner can walk for about 10 minutes at a time; stand for about 20 minutes at a time and about four hours total in an eight-hour period; sit for about 20 to 30 minutes at a time; and lift 20 pounds. (AR 56). Bergner can grip doorknobs, steering wheels, cups, and silverware; button buttons, zip zippers, and tie shoelaces; push bike pedals with his legs; bend over and touch his knees but not his toes; but has limitations climbing stairs. (AR 57). Bergner is able to dress, shower, and ride the bus by himself. (AR 59-60). Bergner can go shopping, do the dishes, do the laundry, make his bed, clean his kitchen and bathroom, and take out the garbage. (AR 60-61).

         Bergner is an alcoholic, and despite attempting to stay sober, he occasionally relapses. (AR 61). He had one relapse in the past year. (AR 61). Bergner's alcohol use contributed to the reasons for his termination from jobs in the past and played a role in his mental health problems. (AR 62). Bergner feels more positive when he does not drink. (AR 63). Bergner smokes about half a pack of cigarettes a day and has not done any illegal drugs since about 2007. (AR 61). Apart from attending Alcoholics Anonymous twice a week, Bergner does not attend any clubs, organizations, or churches. (AR 58-59). Bergner was in a group home for a year in 2009 for treatment related to his PTSD, depression, and alcohol abuse. (AR 55).

         C. Summary of Relevant Medical Evidence

         From November 12, 2008, until April 12, 2012, Bergner was a patient at the Northeastern Center and received treatment for various mental conditions. (AR 352-410). At his initial evaluation on November 12, 2008, Bergner reported that he was an alcoholic but he had been sober for three years. (AR 352). Bergner claimed to suffer from anxiety, depression, mental confusion, fatigue, grief, and hypertension. (AR 352).

         On February 17, 2012, Bergner was seen by Candice Rosa, MSN, NP. (AR 425). In Ms. Rosa's report, she assessed that Bergner had hypertension, osteoarthritis, rosacea, insomnia, and fluid in his right knee. (AR 425-26). On May 17, 2012, Ms. Rosa examined Bergner again and opined that his knee condition had improved. (AR 423).

         On October 26, 2012, Kari Kennedy, Psy.D., a state agency psychologist, reviewed Bergner's record. (AR 95). Dr. Kennedy opined that Bergner was moderately limited in his ability to carry out detailed instructions, understand and remember detailed instructions, and concentrate for extended periods. (AR 94). In her narrative, Dr. Kennedy found that Bergner could understand and carry out simple instructions; make judgments associated with unskilled work; respond appropriately to brief supervision and interactions with coworkers; and deal with changes in a routine work setting. (AR 95). Dr. Kennedy concluded that Bergner could perform unskilled work. (AR 95). A second state psychologist, F. Kladder, Ph.D., reviewed Bergner's record on February 26, 2013, and reached the same conclusion as Dr. Kennedy. (AR 109-10). Dr. Kladder also opined that Bergner had mild limitations in activities of daily living and in maintaining social functioning, and moderate limitations in maintaining concentration, persistence, or pace. (AR 105-06).

         On November 1, 2012, Dr. Bacchus examined Bergner. (AR 560-63). Dr. Bacchus's impression included that Bergner had depression, PTSD, a history of alcohol abuse, an MCL strain in his left knee, generalized joint pain, a history of chronic sinusitis, carpel tunnel syndrome in his left wrist, and tobacco abuse. (AR 562). Dr. Bacchus opined that Bergner could perform light to moderate duties, standing three to four hours in a six- to eight-hour day non-continuous, and that he had limitations with repetitive squatting, stooping, climbing, walking on uneven ground, kneeling, and crawling. (AR 562).

         On December 4, 2012, Dr. Richard Wenzler, a state agency physician, reviewed Bergner's record and opined that he could lift and carry 20 pounds occasionally and 10 pounds frequently; stand or walk six hours in an eight-hour work day; sit six hours in an eight-hour work day; climb stairs and ramps occasionally; never climb ladders; and occasionally balance, stoop, kneel, crouch, and crawl. (AR 91-93). Dr. Wenzler also found that Bergner had some environmental limitations. (AR 93). On February 26, 2013, Dr. Joshua Eskonen, a state agency physician, reviewed Bergner's record and reached the same conclusions as Dr. Wenzler. (AR 106-08).

         On September 5, 2013, Bergner submitted to an examination by neurologist Dr. Carolyn Yap. (AR 755-57). Bergner's chief complaints were cramps and numbness in both feet. (AR 755). Dr. Yap's treatment plan for Bergner included an arterial Doppler ultrasound and an EMG of Bergner's lower extremities. (AR 757). On September 11, 2013, Bergner underwent an EMG and nerve conduction study with Dr. Ajay Gupta, who reported that the results of Bergner's “nerve conduction study” were compatible with “a nearly symmetrical sensory motor peripheral polyneuropathy with demyelinating features.” (AR 753). On September 13, 2013, Bergner presented to Dr. Yap again for an arterial Doppler ultrasound. (AR 751-52). The Doppler ultrasound showed that Bergner had a diminished ankle brachial index (“ABI”) on the left at 0.36 to 0.41, and a mildly diminished ABI on the right at 0.75 ...

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