United States District Court, N.D. Indiana, Fort Wayne Division
MARK D. BERGNER, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, sued as Carolyn W. Colvin, Acting Commissioner of SSA,  Defendant.
OPINION AND ORDER
Collins, United States Magistrate Judge.
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”). (See DE
1). For the following reasons, the Commissioner's
decision will be REMANDED.
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
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).
was 46 years old as of the alleged onset date, and 54 years
old as of the date of the ALJ's decision. 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
Bergner's Testimony at the Hearing
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
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).
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
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).
Summary of Relevant Medical Evidence
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).
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).
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).
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.
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
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 ...