Hupp v. Barnhart, Cause No. 1:02-CV-223 (N.D. Ind. 2/26/2003), Cause No. 1:02-CV-223.
| Decision Date | 26 February 2003 |
| Docket Number | Cause No. 1:02-CV-223. |
| Parties | JOSEPH HUPP, Plaintiff, v. JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, Defendant. |
| Court | U.S. District Court — Northern District of Indiana |
This matter is before the Court1 for judicial review of a final decision of the defendant Commissioner of Social Security ("Commissioner"), denying the application of the plaintiff, Joseph Hupp ("Plaintiff"), for Disability Insurance Benefits ("DIB") and for Supplemental Security Income ("SSI") beginning May 6, 1997.
Section 205(g) of the Social Security Act ("the Act") provides, inter alia, It also provides, "[t]he findings of the [Commissioner] as to any fact, if supported by substantial evidence, shall be conclusive. . . ." 42 U.S.C. § 405(g).
For the following reasons, the ALJ's decision will be AFFIRMED in part and REMANDED in part.
On January 28, 1998, the Plaintiff filed an application for DIB, and later filed a claim for SSI on February 9, 1998. Social Security denied the Plaintiff's claims initially and upon reconsideration. On April 15, 1999, the Administrative Law Judge Bryan J. Bernstein (the "ALJ") conducted a hearing at which the Plaintiff was represented by counsel and testified. Also testifying were the Plaintiff's mother, Mary Ann Hupp, and Christopher Young, a vocational expert ("VE").
On June 21, 1999, the ALJ issued his decision wherein he made the following findings:
1. The claimant met the disability insured status requirements of the Act on May 6, 1997, the date the claimant stated he became unable to work, and has acquired sufficient quarters of coverage to remain insured through at least December 31, 2002.
2. The claimant has not engaged in disqualifying substantial gainful activity since August 5, 1997.
3. The medical evidence establishes that the claimant has spondylolisthesis with lower back pain and bilateral leg pain and numbness, an impairment which is severe, but which does not meet or equal the criteria of any of the impairments listed in Appendix 1, Subpart P, Regulations No. 4.
4. The claimant's statements concerning his impairment and its impact on his ability to work are somewhat reliable, as they support a functional capacity to perform work. However, other statements such as one stating that "he has fallen as much as twenty times in one day" imply considerable exaggeration.
5. The claimant retains the residual functional capacity to perform sedentary exertional work activity with no closely regimented pace of production, an option to sit/stand, and a ten to fifteen pound lifting/carrying limit. In addition, he cannot perform extreme downward or upward postural maneuvers, cannot operate foot controls, nor perform at a closely regimented pace of production.
6. The claimant is unable to perform his past relevant work as a machine operator, a grinder, a fork-lift operator, a marine, and as a press operator.
7. The claimant is 31 years old, a "younger individual."
8. The claimant has a high school education.
9. The claimant has semi-skilled work experience, but has acquired no transferable work skills.
10. Based on an exertional capacity for sedentary work, and the claimant's age, educational background, and work experience, Sections 404.1569 and 416.969 and Rule 201.28, Table 1, Appendix 2, Subpart P, Regulations No. 4, would direct a conclusion of "not disabled."
11. Although the claimant is unable to perform the full range of sedentary work, he 15 capable of making an adjustment to work which exists in significant numbers in the national and regional economy. Such work includes employment as an unskilled order taker, with 300 jobs existing; a security systems monitor, with 150 jobs; and an information clerk, with 350 jobs existing. A finding of "not disabled" is therefore reached within the framework of the above-cited rule.
12. The claimant has not been under a disability, as defined in the Social Security Act, at any time through the date of this decision.
(Tr. at 23-24.)
Based on these findings, the ALJ determined that the Plaintiff was not entitled to DIB or SSI. The Plaintiff requested review by the Appeals Council, which was denied on April 23, 2002, leaving the ALJ's decision as the final decision of the Commissioner. This appeal followed.
The Plaintiff filed his opening brief on December 2, 2002. After an extension of time, the Commissioner filed her "Memorandum in Support of the Commissioner's Decision" on February 18, 2003. The Plaintiff replied on February 24, 2003.
The Plaintiff was twenty-nine years old in May 6, 1997, the alleged onset date of disability, a "younger individual" as defined in the Act.2 See 20 C.F.R. § 404.1563(c).
The Plaintiff has a high school education and previously worked as a machine operator, grinder, forklift operator, marine, and a press operator. (Tr. at 16).
The Plaintiff claims a disability because of his spondylolisthesis at L-5/S-1 vertebrae and right-side S1 radiculopathy.
The Plaintiff first experienced lower back pain in 1991 while serving in the Marine Corp.3 (Tr. at 347-350). Apparently, the Marine physicians diagnosed right femoral nerve compression, causing right leg numbness and weakness, a condition that ultimately led to his discharge in 1992. (Tr. 350).
For some years thereafter, the Plaintiff's back condition did not bother him too much because he was capable to performing medium to very heavy work. However, on May 6, 1997, the Plaintiff re-injured his back, bringing about a new round of low back and leg pain, and he sought treatment at the Fort Wayne, Department of Veteran's Affairs ("VA") Hospital Emergency Room. (Tr. at 180, 230). The physical examination revealed a limping gait, a positive straight leg raise test on the right and hyperreflexia. (Id.) The VA diagnosed the Plaintiff with low back pain and associated radiculopathy, and placed him on a course of pain medication. (Id.)
On May 9, 1997, the Plaintiff reported that the pain medications had helped, but that physical therapy had not. (Tr. at 229). On physical exam, the Plaintiff was tender over his lumbosacral spine and exhibited pain on his right hip. (Id.)
On May 20, 1997, the VA placed the Plaintiff on Darvocet. (Tr. at 226).
During a May 29, 1997, follow-up examination, the Plaintiff rated his pain as a "10" on a scale from 0 to 10, and reported having vomited twice due to the pain. (Tr. at 223).
On May 30, 1997, the Plaintiff reported that his pain had not improved. (Tr. at 222).
On June 3, 1997, the Plaintiff reported having stopped taking his medication because it upset his stomach and made him nauseous. (Tr. at 221). The VA diagnosed gastritis. (Id.)
On June 13, 1997, the Plaintiff underwent an MRI scan of his lumbar spine which showed a very small disc bulge at the L4-L5 vertebrae, with minor facet degenerative changes, but with no significant canal stenosis or neural foramina narrowing. Additionally, the MRI revealed Grade I spondylolisthesis at the L5-S1 vertebrae with associated disc bulge and no significant canal stenosis or bilateral neural foramina narrowing. (Tr. at 251.)
On June 17, 1997, the Plaintiff reported having seen a surgeon at the Indianapolis VA Hospital, who felt the Plaintiff was not a surgical candidate. (Tr. at 218).
On July 15, 1997, the Plaintiff saw Dr. Junaid Akhtar at the Fort Wayne VA. (Tr. at 213-216). A physical examination revealed neuralgia and sensory defects in both lower extremities. (Tr. at 214-216). Dr. Akhtar diagnosed the Plaintiff with neuralgia secondary to congenital deformaties of L-S spine. (Id.) He prescribed Robaxin, Tylenol, and Darvocet.
On August 5, 1997, the Plaintiff returned to Dr. Akhtar with complaints of lower back pain radiating into both legs. (Tr. at 210). He reported that medication helped, but that he had trouble working. (Id.) Dr. Akhtar advised bed rest from August 4-6, 1997, but refused to place any work restriction on the Plaintiff. (Id.)
On September 22, 1997, the Plaintiff reported vomiting and diarrhea. (Tr. at 189-190).
On October 21, 1997, the Plaintiff noted during his physical therapy that a TENS unit had helped him sleep better, and he continued stretching exercises. (Tr. at 188).
On December 9, 1997, the Plaintiff returned to the VA hospital in Indianapolis, and exhibited a non-specific limp. (Tr. at 170). He could walk on his toes and heels with some difficulty, and the VA physician noted weakness throughout his lower extremities. (Id.) The straight leg raise test was negative on the left with some pain on the right. (Id.) The VA physician noted that the Plaintiff had a questionable history and physical exam inconsistent with MM findings; nevertheless, the MRI was abnormal and contained some significant findings. (Id.)
On December 12, 1997, the Plaintiff saw Dr. Bryan Kaplansky, with complaints of low back and intermittent leg pain, leg weakness and numbness. (Tr. at 164-165). Dr. Kaplansky noted that the Plaintiff exhibited pain behavior, but also tested positive for Waddell signs and other non-organic findings. (Tr. at 164). The Plaintiff reported pain while heel and toe walking, and during forward flexion, lateral flexion, extension, and rotation of his lumbar spine. (Id.) Straight-leg raising was negative while sitting, but positive in the supine position. (Id.) With respect to the Plaintiff's strength, Dr. Kaplansky stated "there [was]...
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