United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
Collins United States Magistrate Judge.
Steven Dean Shank 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”). (DE 1). For the following
reasons, the Commissioner's decision will be REVERSED,
and the case will be REMANDED for further proceedings in
accordance with this Opinion and Order.
applied for DIB in January 2013, alleging disability as of
August 25, 2007. (DE 9 Administrative Record
(“AR”) 129-35). He was last insured for DIB on
March 31, 2014 (AR 20); therefore, he must establish that he
was disabled as of that date. See Stevenson v.
Chater, 105 F.3d 1151, 1154 (7th Cir. 1997) (explaining
that a claimant must establish that he was disabled as of his
date last insured in order to recover DIB benefits).
Commissioner denied Shank's application initially and
upon reconsideration. (AR 65, 74). A hearing was held on
October 6, 2014, before Administrative Law Judge Steven Neary
(“the ALJ”), at which Shank, who was represented
by counsel, and a vocational expert, Sharon Ringenberg (the
“VE”), testified. (AR 33-57). On November 17,
2014, the ALJ rendered an unfavorable decision to Shank,
concluding that he was not disabled because he could perform
a significant number of light exertional jobs in the economy
despite the limitations caused by his impairments. (AR
18-27). The Appeals Council denied Shank's request for
review (AR 1-4), at which point the ALJ's decision became
the final decision of the Commissioner. See 20
C.F.R. § 404.981.
filed a complaint with this Court on May 26, 2016, seeking
relief from the Commissioner's final decision. (DE 1).
Shank alleges two material flaws in the decision: (1) that
the ALJ improperly discounted the opinion of Dr. Bacchus, a
physician who examined Shank at the request of the Social
Security Administration; and (2) that the ALJ improperly
discounted Shank's symptom testimony. (DE 14 at 3-9).
time of the ALJ's decision, Shank was 50 years old (AR
129); had completed high school and a welding training
program at Ivy Tech (AR 149); and had worked for 22 years as
a water softener servicer for Culligan (DE 26, 36, 201).
Shank alleges disability due to “[o]steoarthritis, hip
replacement, back injury, femur break[, and] back
pain.” (AR 148).
Shank's Testimony at the Hearing
hearing, Shanks testified as follows: He is married and
performs his self care independently. (AR 36, 40). He is
approximately six feet tall and weighs 240 pounds. (AR
35-36). He stopped working at Culligan seven years earlier
when he had a hip replacement. (AR 36). He spends his days
caring for elderly relatives in that he drives them to
appointments and helps them with light housework; he also
works in the garden. (AR 40). Shank attends church, is
president of a local tractor club, and is a member of the
Lion's Club. (AR 41, 50). Shank is also on the township
advisory board, which meets several times a year. (AR 50).
Shank used to have a commercial driver's license to drive
the church bus, but he had not renewed that license in the
last two years. (AR 42).
asked why he thought he could not work, Shank stated that he
has to move around and cannot sit for long periods of time
due to intermittent, stabbing pain in his low back that
extends into his legs. (AR 37-38). His pain is aggravated by
sitting on a folding metal chair and is alleviated by lying
down. (AR 38). He uses a cane when he walks farther than a
block. (AR 38-39). He can stand for five minutes before
needing to sit down, and he can sit for about 45 minutes at a
time, shifting positions frequently. (AR 39-40, 44-45). He
can lift a gallon of milk from the ground, but bending over
is difficult for him. (AR 39-40; 44-46). He cannot lift 20
pounds from the ground frequently, but he can lift 40 pounds
from a tabletop. (AR 39-40, 44-46). Shank has about four or
five bad days a month where he spends most of the day sitting
in a soft chair or reclining on the couch. (AR 46-47).
was not currently taking prescription pain medication or
receiving any treatment; he takes ibuprofen when going out
for an extended period or if he feels his pain is “bad
enough to take it.” (AR 38, 48). Shank gave several
reasons why he does not take prescription pain medication:
(1) because he drives his elderly relatives to appointments;
(2) because he has taken prescription pain medication such as
Vicodin and Tramadol in the past and had difficulty getting
off of them; (3) he is concerned about long term side effects
to his kidney and other organs; and (4) he had a hard time
concentrating while on Vicodin. (AR 42-43, 48-49).
Shank's doctor told him that when his pain is severe
enough, he “will know it” and that he should then
undergo a lumbar fusion. (AR 41). His doctor does not want to
operate now due to Shank's young age because it would
affect his mobility, and Shank feels that he needs to stay
mobile to help care for his elderly relatives. (AR 41-43).
Summary of the Relevant Medical Evidence
1983, Shank fractured his left femur in a motorcycle
accident. (AR 213, 220, 372). He underwent an open reduction
and internal fixation with placement of an intramedullary
rod. (AR 209, 220, 372).
2007, Shank complained of severe pain in his left hip, knee,
and groin; his left hip range of motion was significantly
decreased. (AR 216, 368, 374, 377). Imaging studies revealed
a narrowing of his left hip joint space and a medial meniscal
tear of his left knee. (AR 209, 213, 216, 368). After
conservative treatment failed to alleviate his symptoms,
Shank underwent a left knee arthroscopy and partial medial
meniscectomy on May 30, 2007, and a total left hip
arthroplasty on August 29, 2007. (AR 215-19, 355, 363-66).
Shank participated in physical therapy through late November
2007. (AR 234-39, 309).
his hip replacement, Shank began experiencing low back pain
that radiated down his legs bilaterally. (AR 212, 241, 243,
246, 263, 300-02, 386, 393). An MRI of his lumbar spine in
October 2008 revealed disc bulges without significant spinal
stenosis at the L3-L4, L4-5, and L5-S1 levels. (AR 393-94).
Shank was diagnosed with lumbar degenerative disc disease,
radiculopathy, and lumbar facet syndrome. (AR 251). He
underwent bilateral nerve root blocks at the S1 level of his
lumbosacral spine in December 2008. (AR 246-48).
January 14, 2009, Shank was referred to Dr. Robert Shugart,
an orthopedic surgeon at Fort Wayne Orthopaedics, L.L.C., for
consultation regarding surgical options. (AR 250). Dr.
Shugart observed that Shank's recent MRI “really
looks good” in that he had “a little bit of
bulging but overall, well maintained.” (AR 264). He had
some facet arthropathy too, but no significant central
foraminal or later recess stenosis. (AR 264). Dr. Shugart
recommended that Shank have a discogram performed, and Shank
did so on March 31, 2009. (AR 255-58, 264). The discogram
revealed “discogenic low back pain with concordant