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Frederick v. Berryhill

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

December 20, 2017

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



         In August 2011, Michael Kevin Frederick was working as a self-employed data communications systems (satellite/cable) installer when he fell eight feet causing injury to his left hand, wrists, elbows, shoulders, knees, neck, and back. In January 2013, he applied for disability insurance benefits alleging disability as of the date of his accident. (R. at 258-59, 276-290). After holding two hearings, the administrative law judge (“ALJ”) disagreed and found that jobs existed which Mr. Frederick was capable of performing. The Appeals Council denied Mr. Frederick's request for review. Mr. Frederick then filed this action seeking judicial review of that decision, thereby invoking this Court's jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3). For the reasons stated below, the Court remands this matter to the Commissioner for further proceedings.


         Ever since his fall, Mr. Frederick has consistently sought treatment from various doctors and specialists for his multiple injuries while presenting with complaints of ongoing pain. He initially sought treatment from Dr. Anthony McPherron in 2011 through December 2012, whose medical records reflect that despite medication management and physical therapy, Mr. Frederick continued to experience pain. (R. at 652-87).

         Mr. Frederick was referred to an orthopedic surgeon, Dr. Thomas Magill, who recommended surgery for his left shoulder based on MRI results and recommended only occupational therapy for his left hand. (R. at 352-70). On January 19, 2012, Dr. Magill performed a left shoulder arthroscopy with arthroscopic bankart repair. Thereafter, Mr. Frederick engaged in several months of physical/occupational therapy (R. at 390-584), yet he continued to report pain in his left shoulder, left hand, wrists, neck, and knees. An arthrogram and MRI of his left shoulder revealed post-operative changes and mild tendinopathy of the supraspinatus. (R. at 373). Thereafter, Dr. McPherron performed a manipulation of Mr. Frederick's left shoulder, after which, Mr. Frederick continued to experience pain, numbness, and tingling. (R. at 654-60).

         In the second half of 2012, Mr. Frederick sought treatment from orthopedists Dr. Adelbert Mencias and Dr. Todd Graham because he continued to experience pain. Dr. Mencias performed a left cubital tunnel release and right wrist steroid injections for Mr. Frederick's cubital tunnel syndrome. (R. at 585-92, 628-51).

         In 2013, Mr. Frederick sought treatment from general practitioner, Dr. Walter Fritz. (R. at 697-98, 741-44, 762-66, 769-78, 799-803). Records indicate that Mr. Frederick was prescribed a host of medications including Lyrica, Mobic, Hydrocodone, Restoril, Zanaflex, Ultram, Wellbutrin, and Norco. The pain medication caused Mr. Frederick to feel distracted and “in a fog” to the point where he avoided driving. (R. at 297-303).

         Dr. Fritz referred Mr. Frederick to board certified anesthesiologist, Dr. Barry Ring, for pain management. (R. at 705-40). In February 2013, Dr. Ring reviewed Mr. Frederick's various laboratory results and examined Mr. Frederick. The examination indicated that Mr. Frederick tested positive for pain in his shoulders, knees, left hand, and back. Dr. Ring reported that an MRI showed a disc bulge in Mr. Frederick's neck and that a left wrist brace was prescribed. Dr. Ring required Mr. Frederick to be off of work until further evaluation. An April nerve conduction study revealed bilateral ulnar neuropathies at the elbows and bilateral low cervical radiculopathies. Mr. Frederick underwent trigger point cervical steroid injections. As of July, Mr. Frederick was still reporting little relief from the pain.

         Dr. Fritz's medical records show that Mr. Frederick continued to experience pain and stiffness in his neck with radiation to both shoulders, along with pain in his knees, wrists, and left hand. He documented that Mr. Frederick suffered from a decreased range of motion in his neck and left shoulder, and a decreased grip strength in his left hand. From early 2013 through late 2015, Dr. Fritz consistently opined that future employment was unlikely for Mr. Frederick as he was “completely disabled.” Dr. Fritz completed physical residual functional capacity (“RFC”)[1]assessments in October 2013, January 2015, and August 2015 (R. at 741-44, 762-65, 799-803) revealing that Mr. Frederick suffered from dizziness, fatigue, and pain in his shoulders, arms, hands, knees, and neck which limited his ability so much so that he was rendered disabled.

         In early 2014, neurosurgeon, Dr. Michel Malek reviewed Mr. Frederick's MRIs. (R. 745-51). Dr. Malek found that the cervical MRI confirmed evidence of herniation consistent with Mr. Frederick's symptoms. The lumbar spine MRI showed slight desiccation and retrolisthesis, and evidence of an annular tear on the right at ¶ 5-S1. An EMG/nerve study showed chronic L5-S1 radiculopathy. Surgery to the lumber and cervical spine was an option but Dr. Malek wanted Mr. Frederick to get a second opinion. Dr. Malek opined that Mr. Frederick needed to remain off work, subject to later reassessment.

         Meanwhile, physical consultative examiners opined that Mr. Frederick was capable of performing at least sedentary work with restrictions (R. at 691-93, 791-97), non-examining state agents opined that Mr. Frederick was capable of performing light work with restrictions (R. 142-62), and an independent medical expert (“ME”) testified that Mr. Frederick was capable of performing light work with restrictions. (R. at 66-70).

         After reviewing the record, the ALJ concluded that Mr. Frederick was capable of performing a limited range of light work. In making this determination, the ALJ gave Drs. Fritz and Malek's opinions “little weight” because the ALJ believed that they were inconsistent with the record evidence. (R. at 27, 31). In determining the type of work Mr. Frederick could perform, the ALJ rested on the vocational expert's testimony that based strictly on the (relevant) hypothetical posed to him, [2] Mr. Frederick would not be able to perform his past work, but could perform unskilled work as a parking lot attendant, school crossing guard, and office helper. Accordingly, the ALJ found at step five that Mr. Frederick was not disabled.


         Because the Appeals Council denied review, the Court evaluates the ALJ's decision as the final word of the Commissioner of Social Security. Schomas v. Colvin, 732 F.3d 702, 707 (7th Cir. 2013). This Court will affirm the Commissioner's findings of fact and denial of disability benefits if they are supported by substantial evidence. Craft v. Astrue, 539 F.3d 668, 673 (7th Cir. 2008). Substantial evidence consists of “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). This evidence must be “more than a scintilla but may be less than a preponderance.” Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir. 2007). Thus, even if ‚Äúreasonable minds could ...

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