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Hughes v. Commissioner of Social Security

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

March 29, 2018

ROSEMARIE HUGHES, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, sued as Carolyn W. Colvin, Acting Commissioner of Social Security, [1] Defendant.

          OPINION AND ORDER

          Susan Collins, United States Magistrate Judge.

         Plaintiff 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”).[2] For the following reasons, the Commissioner's decision will be REMANDED.

         I. PROCEDURAL HISTORY

         On 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).

         Hughes's 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).

         On 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).

         II. FACTUAL BACKGROUND[3]

         A. Background

         At the 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).

         B. Hughes's Testimony at the Hearing

         At the 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).

         Hughes 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).

         On 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).

         Hughes's 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).

         Following 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).

         Sometime 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).

         After 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).

         Hughes's 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).

         C. Relevant Medical Evidence

         1. Prior to the DLI

         On 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).

         Hughes 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. (AR 272-88).

         While 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).

         Dr. 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 ...


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