George A. Plessinger, II, Plaintiff-Appellant,
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant-Appellee.
July 6, 2018
from the United States District Court for the Northern
District of Indiana, Fort Wayne Division. No. 17-CV-71 -
William C. Lee, Judge.
Sykes, Hamilton, and Brennan, Circuit Judges.
Hamilton, Circuit Judge.
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.
Factual and Procedural Background
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.
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."
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
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
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
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.
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."
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 ...