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Shank v. Commissioner of Social Security

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

January 16, 2018

STEVEN DEAN SHANK, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          OPINION AND ORDER

          Susan Collins United States Magistrate Judge.

         Plaintiff 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”).[1] (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.

         I. PROCEDURAL HISTORY

         Shank 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);[2] 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).

         The 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.

         Shank 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).

         II. FACTUAL BACKGROUND[3]

         At the 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).

         A. Shank's Testimony at the Hearing

         At the 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).

         When 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).

         Shank 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).

         B. Summary of the Relevant Medical Evidence

         In 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).

         In 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).

         After 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).

         On 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 ...


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