United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
Collins, United States Magistrate Judge.
Rosemarie Hughes appeals to the district court from a final
decision of the Commissioner of Social Security (the
“Commissioner”) denying her application under the
Social Security Act (the “Act”) for Disability
Insurance Benefits (“DIB”). For the following
reasons, the Commissioner's decision will be REMANDED.
January 14, 2013, Hughes filed her application for DIB,
alleging disability as of November 18, 2007. (DE 5
Administrative Record (“AR”) 16, 159-60). Hughes
was last insured for DIB on December 31, 2011 (the
“DLI”) (AR 193), and therefore, she must
establish that she was disabled as of that date. See
Stevenson v. Chater, 105 F.3d 1151, 1154 (7th Cir. 1997)
(explaining that with respect to a DIB claim, a claimant must
establish that he was disabled as of his date last insured in
order to recover DIB).
claim was denied initially on February 19, 2013, and again on
May 15, 2013. (AR 102-10, 112-18). Hughes filed a request for
a hearing before an Administrative Law Judge. (AR 119-24). On
August 12, 2014, Administrative Law Judge Terry Miller (the
“ALJ”) held a hearing, at which Hughes and Sharon
Ringenberg, a vocational expert (the “VE”),
testified. (AR 38-88). Hughes was represented by attorney
Sarah Gillis at the hearing before the ALJ. (AR 38). On
September 15, 2014, the ALJ issued an unfavorable decision,
finding that Hughes was not disabled because, through the
DLI, she did not have a medically determinable impairment or
combination of impairments that was severe. (AR 22-36).
Hughes requested that the Appeals Council review the
ALJ's decision (AR 20), and the Appeals Council denied
her request, making the ALJ's decision the final,
appealable decision of the Commissioner (AR 1-3).
January 21, 2016, Hughes filed a complaint with this Court
seeking relief from the Commissioner's final decision.
(DE 1). In her appeal, Hughes alleges that the ALJ erred by
finding that she did not have an impairment or combination of
impairments that was severe. (DE 10 at 2, 12).
time of the ALJ's decision, Hughes was 55 years old. (AR
45). She has a high-school education and completed a computer
course at Ivy Tech Community College of Indiana. (AR 46).
Hughes's employment history includes work as a bank
teller, a server at a restaurant, a customer service
representative, and a machine operator. (AR 49-51).
Hughes's Testimony at the Hearing
hearing Hughes testified as follows: She is about five feet,
eight inches tall and weighs approximately 112 pounds. (AR
45). Hughes lives with her husband of 31 years in a house
they are purchasing. (AR 46-47). She has one biological child
and three stepsons, all of whom live outside the home. (AR
45-46). Hughes's husband is employed, and Hughes does not
receive assistance of any sort. (AR 46). She has a
driver's license and is able to drive. (AR 47). Hughes
does not have a primary care physician. (AR 55-56). Hughes
used to smoke but quit in 2014 because it was too expensive
and because her doctor said she needed to quit. (AR 68).
suffers from severe degenerative disc disease affecting
multiple levels of her cervical spine with corresponding
nerve root compression. (AR 53). Prior to November 15, 2007,
Hughes noticed some tingling or loss of control in the
fingers of her left hand, but she ignored it because she was
trying to complete a 90-day probationary period working at
Wiley Metal. (AR 56). Currently, Hughes experiences numbness
and tingling mainly on the left side of her body; in her left
arm, left leg, and in her left hand. (AR 52, 57). Hughes does
not have much strength in her left arm, and while she can
carry things with her right arm, she cannot do so for very
long. (AR 57).
November 15, 2007, Hughes fell while exiting her truck at
home and the next thing she knew she woke up lying on the
ground. (AR 49, 52). The fall broke the lower part of
Hughes's left leg in three places. (AR 49, 52, 54).
Hughes has weakness in her left side, which caused her
strength to give out in her left leg and her subsequent fall
out of the truck. (AR 52-53). Hughes went to the emergency
room and Aaron LeGrand, M.D., performed surgery on her,
putting intramedullary nails in her left leg. (AR 53).
broken leg drew some pre-existing spinal conditions to her
attention. (AR 49). On December 14, 2007, a neurologist,
Jeffery Kachmann, M.D., performed an anterior cervical fusion
at three levels of Hughes's vertebrae, C4 through C7. (AR
57). Prior to the surgery, Hughes was experiencing pain in
her neck, about a seven or an eight on a scale of one to 10.
(AR 57). Following this surgery, Hughes no longer experiences
pain, but her muscle use and nerve sensitivity have not
returned. (AR 58).
the surgery on Hughes's spine, she completed 18 months of
physical or occupational therapy, but did not regain all
feeling or muscle strength in her left side and cannot walk
like she used to. (AR 54, 58). Dr. Kachmann told her that
there was nothing he could do about her loss of muscle
strength and nerve sensitivity. (AR 58).
later, Hughes began to experience pain in her neck similar to
the pain she had prior to her spinal fusion surgery. (AR 59).
She consulted Dr. Kachmann, who recommended she undergo a
second surgery on her cervical spine. (AR 59). In June 2013,
Dr. Kachmann performed surgery on vertebrae C4 through C7 and
also fused one vertebra above and one below the three he had
previously worked on in Hughes's first surgery. (AR 59).
the second fusion surgery, the majority of Hughes's pain
went away, but she continues to experience stinging and
numbness on the left side of her body. (AR 60). The numbness
and tingling after the second surgery were greater than after
the first. (AR 60-61). Hughes takes Hydrocodone for pain and
muscle relaxers as needed. (AR 61-62).
use of her hands, particularly her left, have been limited to
some extent since her first surgery. (AR 75). For example,
Hughes has been unable to pick up and pour a gallon of milk
with her left hand or pick up a glass because of her
diminished nerve sensitivity and grip strength. (AR 76-77).
Similarly, the tingling in her left arm has been constant
since her first surgery. (AR 76).
Relevant Medical Evidence
Prior to the DLI
October 27, 2007, Hughes went to the emergency room at St.
Joseph Hospital for pain and numbness in her hands. (AR
259-60). X-rays showed that Hughes had “severe
degenerative disc disease at ¶ 5-6 and C6-7. The disc
spaces [were] markedly narrowed and there [was] hypertrophic
change. There [was] mild retrolisthesis of C5 and C6.”
(AR 263). The report also noted “mild to moderate disc
disease at ¶ 4-5.” (AR 263).
went to the emergency room at St. Joseph Hospital again on
November 15, 2007, because she had fallen out of her truck
and fractured her leg. (AR 272-73). She underwent a tibial
fracture fixation with an intramedullary nail. (AR 272, 285).
Hughes was discharged three days later on November 18, 2007.
in the emergency room for her fractured leg, Hughes also
reported “a history of some neck pain over the years
which has gotten worse over the past one year and . . . some
increasing upper extremity numbness, weakness, and even pain
. . . .” (AR 274). Thomas Reilly, M.D., F.A.C.S.,
opined that Hughes had cervical stenosis, spondylosis, and
suspected myelopathy based on her complaints of numbness in
her upper extremities. (AR 272). Dr. Reilly opined that
Hughes exhibited the following issues: “some weakness
of the triceps and intrinsic muscles on testing 
bilaterally”; “weakness of right [extensor
hallucis longus] and right quadriceps, ” but her left
side could not be tested due to recent surgery on her left
leg; “some decreased light touch” sensation
demonstrated in her upper extremities bilaterally and in
“somewhat of a pandermatomal pattern”; positive
Hoffman's testing; positive Babinski testing; and
“moderate decreased range of motion of the cervical
spine in extension and lateral rotation . . . .” (AR
275). A review of Hughes's x-rays revealed “some
cervical spondylosis[, ] particular[ly] ¶ 5-6 and C6-7
with anterior osteophytes, ” and a somewhat elevated
erythrocyte sedimentation rate of 34. (AR 275-76). Dr. Reilly
diagnosed Hughes with: cervical stenosis, cervical
spondylosis with suspected myelopathy, and cervical
degenerative disc disease with radiculopathy. (AR 276).
Reilly referred Hughes for an MRI. (AR 254). On reviewing the
results, Dr. LeGrand found moderate cord compression at
¶ 6-C7 with severe left and moderate right foraminal
stenosis, and “a 4.2 mm [anteroposterior] dimension
right central disc protrusion indents on the right
hemicord.” (AR 254). Dr. LeGrand diagnosed Hughes with
multifactorial severe cord compression at ¶ 4 and C5-C6,
with abnormal intramedullary cord T2 ...