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Plessinger v. Berryhill

United States Court of Appeals, Seventh Circuit

August 20, 2018

George A. Plessinger, II, Plaintiff-Appellant,
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant-Appellee.

          Argued July 6, 2018

          Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. No. 17-CV-71 - William C. Lee, Judge.

          Before Sykes, Hamilton, and Brennan, Circuit Judges.

          Hamilton, Circuit Judge.

         George Plessinger applied for disability insurance benefits under the Social Security Act based on his chronic back pain. An administrative law judge found that he was severely impaired by his lumbar degenerative disc disease and stenosis, thoracic degenerative disc disease, obesity, and systemic hypertension. Given the stringent standard for total disability under the Social Security Act, however, the ALJ found that these impairments were not disabling. The agency's Appeals Council denied review, and the district court upheld the ALJ's decision. We reverse and remand to the agency. In the face of the great weight of medical evidence supporting Plessinger's claims of disabling impairments, the ALJ gave undue weight to the opinion of the testifying medical expert, who did not examine Plessinger and hedged his opinion in a critical way that was never resolved. The ALJ and the testifying medical expert each seemed to delegate to the other the job of evaluating the credibility of Pies-singer's complaints of pain. The ALJ's decision to discount the credibility of those complaints was not supported by substantial evidence.

         I. Factual and Procedural Background

         Plessinger was born with congenital spinal stenosis. He began experiencing back pain in 2010, when he was just 23 years old. He worked as a diesel mechanic, electric lineman, fast food worker, welder, and truck driver. But in April 2012 he was in an accident that exacerbated a prior injury from falling at work. He had epidural nerve block injections in August 2012, but they did not relieve his pain. An MRI scan revealed a disc rupture in his lumbar spine, so he had surgery in March 2013.

         In May and September 2013, in connection with Piessinger's application for Social Security disability benefits, non-examining consultants for the agency assessed his residual functional capacity, meaning his abilities to do various work-related activities on a sustained basis. Dr. J.V. Cocoran determined that Plessinger had the residual functional capacity to perform light work, while Dr. J. Sands determined he could perform only sedentary work. Specifically, Dr. Cocoran found that Plessinger could stand or walk for about six hours in an eight-hour workday. Dr. Sands, on the other hand, found that Plessinger could stand or walk for a total of only two hours per day and noted that he had "objectively supported back problems that are significant for someone his age."

         Unfortunately, Plessinger's 2013 surgery did not relieve his chronic pain. He was later diagnosed with failed back surgery syndrome, which is also called post-laminectomy syndrome. Plessinger's neurosurgeon, Dr. Jeffrey Kachmann, referred him to a pain management doctor, Dr. Neal Coleman, to see if more conservative treatment could forestall a second surgery. Dr. Coleman examined Plessinger in February 2015 and noted that he could walk only 50 yards before his legs began to tingle. Dr. Coleman's notes indicate that Plessinger's four different daily pain medications reduced his symptoms, but his pain was aggravated by daily activities, including "lifting, lying/rest, rolling over in bed, sitting, standing and walking." Dr. Coleman also noted that Plessinger's spinal stenosis was "symptomatic and function limiting" and did not respond to injection therapies or other conservative pain management approaches.

         Dr. Coleman referred Plessinger to another neurosurgeon to assess whether a second surgery would be appropriate. Dr. Guatam Phookan examined him in March 2015. He noted disc herniation in several parts of Plessinger's spine, and diagnosed "referred/radicular pain" in both legs. Dr. Phookan noted that Plessinger was already living with failed back surgery syndrome and that his herniations were not in the same part of the spine where he was experiencing the most pain. Dr. Phookan determined that it would be best to explore other options for pain relief before attempting a second surgery.

         Plessinger was examined by the agency's consulting examiner, Dr. Xavier Laurente, in July 2014. Dr. Laurente determined that Plessinger could walk only 20 to 30 feet and could stand for only five minutes at a time. He noted that Plessinger had limited strength in his legs and showed "some signs of nerve impingement (with positive straight leg raise test)."

         At his hearing before the ALJ in April 2015, Plessinger testified about his physical limitations. He explained that he did his best to help his wife take care of their five young children, all under ten years old. He said that on a typical day, he would wake up at 6:00 a.m. to wake the children up for school, then lie back down for half an hour while they were getting ready, then get up again to make sure they were dressed and to get them on the school bus. After that he would lie down again before getting up again at 11:00 to make lunch for himself and his youngest children. He would then take care of the children until his wife got home from work.

         Plessinger also explained that he had difficulty walking because of the "shooting pain" he experienced when moving around. He testified that if he walked more than ten feet, his legs went numb, so most of the time he either lay down in bed to ease the pain or sat in his chair. He said the pain also interfered with his sleep, allowing him to sleep only two to three hours at a time, followed by tossing and turning because of the pain. As for daily activities, he said that it took him all day to wash a load of dishes because he had to take frequent breaks to allow his back to decompress and to "get the feeling back in [his] legs."

         Dr. John Pella, a physician certified in internal medicine and specializing in pulmonary disease, also testified at the hearing as a medical expert. He had reviewed Plessinger's medical records but had not examined him. Dr. Pella began by briefly summarizing the results of Plessinger's most recent MRI from August 2014, which revealed several areas of disc extrusion and root effacement. He also ...

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