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Brubaker v. Commissioner of Social Security

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

May 14, 2018

COMMISSIONER OF SOCIAL SECURITY, sued as Nancy A. Berryhill, Acting Commissioner of SSA, [1] Defendant.



         Plaintiff Melissa M. Brubaker appeals to the district court from a final decision of the Commissioner of Social Security (“Commissioner”) denying her application under the Social Security Act (the “Act”) for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”).[2] (DE 1). For the following reasons, the Commissioner's decision will be REVERSED, and the case will be REMANDED to the Commissioner for further proceedings in accordance with this Opinion and Order.


         Brubaker applied for DIB and SSI in November 2013 alleging disability as of November 1, 2012. (DE 12 Administrative Record (“AR”) 312-19). The Commissioner denied Brubaker's application initially and upon reconsideration. (AR 230-37, 240-45). After a timely request, a hearing was held on July 23, 2015, before Administrative Law Judge Stephanie Katich (“the ALJ”), at which Brubaker, who was represented by counsel, and a vocational expert, Marie Kieffer (the “VE”), testified. (AR 43-93). On October 15, 2015, the ALJ rendered an unfavorable decision to Brubaker, concluding that she was not disabled because despite the limitations caused by her impairments, she could perform a significant number of light-exertional jobs in the economy, including cashier, sales attendant, and cafeteria attendant. (AR 18-29). The Appeals Council denied Brubaker's request for review (AR 1-14), at which point the ALJ's decision became the final decision of the Commissioner. See 20 C.F.R. §§ 404.981, 416.1481.

         Brubaker filed a complaint with this Court on January 13, 2017, seeking relief from the Commissioner's final decision. (DE 1). Brubaker advances two arguments in this appeal, asserting that the ALJ: (1) failed to incorporate all of her mental limitations into the assigned residual functional capacity (“RFC”) and the step-five hypotheticals; and (2) improperly discounted her symptom testimony. (DE 20 at 9-18).


         At the time of the ALJ's decision, Brubaker was 31 years old (AR 29, 296); had attended two years of college and had completed specialized job training in histotechnology (AR 341); and possessed past work experience as a histotechnician, phlebotomist, sales associate, waitress, factory worker, and home health care assistant (AR 342, 543).

         A. Brubaker's Testimony at the Hearing

         Brubaker testified as follows at the hearing: When asked why she thought she could not work, Brubaker cited her chronic pancreatitis, which causes her to experience pain and vomiting, and her bipolar disorder, which causes her to become very depressed to where she cannot get out of bed or leave home. (AR 49). Brubaker held jobs in the past despite her pancreatitis, which she has had since 2004, but the condition is worsening in that the pancreatitis attacks are occurring more frequently. (AR 50). She finds it hard to eat most of the time, and she has trouble sleeping; her anxiety about her pancreatitis then triggers her mental health issues. (AR 50, 67-68). She estimated that she sleeps just three hours a night; she was not taking any sleep aide medications. (AR 68, 71). She experiences pain throughout the day, ranging from soreness when relaxed to sharp pain during spasms. (AR 70-71).

         Brubaker had not seen a specialist for her pancreatitis since 2012 due to financial concerns and a lack of health insurance. (AR 53). She was not taking any prescription medications for her pancreatitis, but seeks care from an emergency room if needed when she has an acute attack. (AR 53-54, 56). Her pancreatitis attacks are triggered by stress and eating, so she tries to avoid both; when she does eat, she consumes very small amounts of bland food. (AR 54-55). When she feels the onset of spasms, she stops eating, lies down and rests, and tries to avoid stress in order to relax her muscles; she also uses heat and takes hot baths. (AR 54-56).

         Brubaker takes prescription medication for her mental health issues, including a bipolar disorder, but still feels “very nonfunctional.” (AR 57). She complained of racing thoughts, constant worry, and no motivation. (AR 68-69). She stated that the medication controls her mood swings, but makes her feel numb. (AR 57-58). She had not been to a therapist in the past year due to her limited finances, but she had an appointment to start again.[4] (AR 58).

         B. Summary of the Relevant Medical Evidence

         In 2005, Brubaker was diagnosed with chronic pancreatitis by Dr. Glen Lehman, a specialist at the IU School of Medicine. (AR 786, 1547-1552). She had a trial of biliary stenting and biliary sphincterotomy that did not improve her pain. (AR 786). An upper endoscopic ultrasound in December 2006 showed mild chronic pancreatitis, and she underwent a successful celiac plexus block. (AR 1773-74). In 2007, Brubaker was seen three times at the University of Cincinnati by Dr. Shailendra Chauhan, a gastroenterology specialist. (AR 1730-39). Dr. Chauhan thought that Brubaker's problems were due to irritable bowel syndrome and not pancreatitis. (AR 1731). From January 2007 to May 2009, Brubaker was treated by gastroenterology specialists at Lutheran Medical Group. (AR 1553-1628).

         In 2009, Brubaker returned to Dr. Lehman, who gave her three options to manage her chronic pain: pain management, a feeding tube, or a pancreas transplant. (AR 786). Brubaker chose pain management, and Dr. Lehman prescribed Creon and Vicodin. (AR 786).

         In September 2009, Brubaker entered a partial hospitalization program for anxiety and depression. (AR 597-600). She was diagnosed with major depression, recurrent, severe without psychosis; and panic disorder without agoraphobia. (AR 599). She was assigned a Global Assessment of Functioning (“GAF”) score of 48 upon admission and a past-year score of 65.[5] (AR 599).

         In 2010, Brubaker visited the emergency room twice for her abdominal symptoms. (AR 663, 730). Brubaker saw Dr. Steven Hatch, a pain management specialist, three times from November 2010 to February 2011. (AR 670-78). Brubaker's goal was to wean down her pain medications, and Dr. Hatch adjusted her medications at each visit. (AR 671, 674). On a 10-point scale, Brubaker rated her pain as an “eight” at her first appointment, a “six” at her second appointment, and a “four” at her third appointment. (AR 670, 673, 676).

         In November 2010, Brubaker was hospitalized after her husband found her acting strangely. (AR 620-25). It was suspected that she had abused prescription medications; Brubaker was uncooperative and denied that she was abusing prescription drugs. (AR 620-21, 625). The doctor concluded that Brubaker had taken more medication than prescribed. (AR 621, 625). Brubaker was diagnosed with a depressive disorder, not otherwise specified (“NOS”); an anxiety disorder, NOS; rule out drug dependency; and rule out a drug-induced mood disorder. (AR 621).

         Brubaker was hospitalized again in December 2010, admitting that she was abusing prescription narcotics and complaining of abdominal pain, suicidal thoughts, insomnia, depression, panic attacks, and anxiety. (AR 644-46). She was placed in a chemical dependency program. (AR 646). She was not working and was not able to care for her two-year-old son. (AR 645). She was assigned a GAF score of 60 and diagnosed with a depressive disorder, NOS; an anxiety disorder, NOS; drug dependence, narcotics; a drug-induced mood disorder; and a borderline personality disorder. (AR 644).

         In February 2011, Brubaker saw Dr. Edward Schultz, of Parkview Physicians Group, complaining of abdominal pain, depression, diminished stamina, anorexia, confusion, diarrhea, nausea, and vomiting. (AR 774-77). She was taking Percocet three times daily for her pain. (AR 783). She had recently received hospital outpatient care for anxiety attacks. (AR 774). She admitted to suicidal ideation and a previous addiction to pain medications. (AR 776). She was attending Alcoholics Anonymous meetings to address her non-alcohol addictive issues. (AR 776). She was overwhelmed by her medication situation and bills. (AR 776). Dr. Schultz adjusted her medications and referred her for some laboratory testing. (AR 776).

         Brubaker saw Dr. P. Rustagi four times in early 2011. (AR 682-83, 739-41). In February, she complained of panic attacks and suicidal thoughts and had been abusing prescription pain medication. (AR 682). She was diagnosed with a bipolar disorder and assigned a GAF score of 50. (AR 683). In March, Brubaker reported a good response to her current medication regime and that she was complying with her medications. (AR 741). In April, Brubaker reported that she was feeling well and was still complying with her medications. (AR 740). In June, Brubaker reported that life had been going reasonably well for her and that her mood had been fairly content and stable. (AR 739). She had been taking her medications sporadically and thought her mental health was “in good shape, ” so she wanted to taper off of her medications. (AR 739).

         In August 2011, Brubaker was hospitalized for a week due to abdominal pain, chronic pancreatitis, and wall thickening of her colon. (AR 743-47, 770). She had stopped all of her medication five months earlier. (AR 743). She was treated with intravenous narcotic pain management and antiemetics. (AR 747). Brubaker saw Dr. Schultz after she was discharged. (AR 770-73). Brubaker told Dr. Schultz that she had stopped all of her medications five months earlier, and that since that time she has had repeated episodes of abdominal discomfort lasting several days at a time that eventually resolved spontaneously. (AR 770). In the last three weeks, her pain had become more recalcitrant. (AR 770). He recommended that she undergo further consultation and testing. (AR 773).

         In September 2011, Brubaker was evaluated by Park Center upon self referral. (AR 950-59). Brubaker admitted a history of misuse of opiate pain medications. (AR 950). She presented with anxiety and depression. (AR 950). She was diagnosed with opioid dependence and cannabis abuse. (AR 957-58). Treatment at Park Center continued through July 2015; Brubaker inconsistently attended treatment, which impacted her progress. (AR 950-67, 1001-32, 1037-74, 1126-71, 1388-1424, 1456-1545). Diagnoses of a bipolar II disorder and a major depressive disorder, single episode, moderate, and an anxiety disorder, NOS, were subsequently added. (AR 1008, 1016, 1171). She was ...

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