Minnick v. Colvin

• Citation: 775 F.3d 929
• Decision Date: 07 January 2015
• Docket Number: No. 13–3626.,13–3626.
• Parties: Daniel P. MINNICK, Plaintiff–Appellant, v. Carolyn W. COLVIN, Acting Commissioner of Social Security, Defendant–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

775 F.3d 929

Daniel P. MINNICK, Plaintiff–Appellant,

v.Carolyn W. COLVIN, Acting Commissioner of Social Security, Defendant–Appellee.

No. 13–3626.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 28, 2014

Decided Jan. 7, 2015

Reversed and remanded. Timothy E. Burns, Attorney, Keller & Keller, Indianapolis, IN, for Plaintiff–Appellant.

Luke F. Woltering, Attorney, Social Security Administration Office of the General Counsel, Region V, Chicago, IL, for Defendant–Appellee.

Before BAUER, POSNER, and TINDER, Circuit Judges.BAUER, Circuit Judge.

Plaintiff–Appellant, Daniel P. Minnick (“Minnick”), suffers from a number of serious medical problems, including fibromyalgia, chronic obstructive pulmonary disease (“COPD”), and degenerative disc disease. In 2010, he applied for disability insurance benefits under the Social Security Act. After the Disability Determination Bureau (“DDB”) denied Minnick's claim in December 2010, Minnick requested an administrative hearing before an Administrative Law Judge (“ALJ”). The ALJ determined that Minnick is not disabled within the meaning of the Social Security Act. The Appeals Council denied Minnick's request for review, rendering the ALJ's decision final. 20 C.F.R. § 404.981. Minnick then sought review in the district court, which affirmed the ALJ's decision on September 27, 2013. We conclude that the ALJ made a number of errors in her consideration of the record and therefore reverse and remand Minnick's case for further proceedings.

I. BACKGROUND

The medical records in this case demonstrate that Minnick sought treatment for numerous health concerns over the years, but his chronic pain and back ailments predominate. At various times, Minnick has been assessed as having the following ongoing ailments: degenerative disc disease, spondylosis, COPD, fibromyalgia, migraine headaches, intermittent headaches, hypertension, anxiety, and depression. We confine our discussion of Minnick's medical records to the information most relevant to the ALJ's decision and this appeal.

A. Medical Evidence

Minnick sought treatment for his pain beginning in May 2008, when he saw his attending physician, Dr. Brian Zurcher. Dr. Zurcher diagnosed severe joint pain. From September to November of that year, Minnick was also treated for exacerbation of his preexisting COPD. In December, he reported worsening shortness of breath related to his COPD, but still felt he could return to work.

In January 2009, Minnick saw Dr. Keith Harvey complaining of lower back pain radiating down both legs. Dr. Harvey believed the pain was likely muscular in nature, but secondary to deconditioning and obesity. Dr. Harvey suggested that Minnick may have fibromyalgia. When Minnick's condition did not improve, Dr. Harvey sent him for x-rays and an MRI of the lumbar spine, which revealed lumbar spondylosis, mild hypertrophic degenerative spur formation, and a bulging disc. As a result of these tests, Dr. Harvey diagnosed Minnick with lumbar spondylosis, recommended walking to get his weight down, and prescribed Vicodin for the pain. Another round of x-rays on December 14, 2009, showed disc space narrowing and an MRI showed mild degrees of spinal stenosis without evidence of spinal cord compression or nerve root compression. An MRI on December 16, 2009, analyzed this time by Dr. Zurcher, showed evidence of a disc protrusion involving two lumbar vertebrae, resulting in mild to moderate mass effect upon two nerve roots.

In June 2010, Minnick saw Dr. James Hanus, D.O., who listed daily headaches, intermittent migraines, and fibromyalgia as possible etiologies of Minnick's problems. At a follow-up in July, Dr. Hanus noted improvements with the headaches, but reported left back pain, thoracic pain, and carpal pedal spasms in Minnick's arms, as well as left leg pain. He diagnosed “[p]robably some” fibromyalgia, headaches, migraines, and thoracic pain.

In October 2010, rheumatologist Dr. David Campbell examined Minnick. Dr. Campbell assessed a positive straight leg raise in both legs at 30 degrees. He found no trigger points indicating fibromyalgia, but cautioned that he “could have caught [Minnick] on a good day” and that Minnick's pain history was strongly suggestive of fibromyalgia. Minnick had two follow-up appointments with Dr. Harvey in November 2010. At the first appointment, Dr. Harvey increased Minnick's painkiller dosage. At the second appointment, he noted that the increased dosage had not helped manage Minnick's pain.

Minnick also met with DDB consultant Dr. B.T. Onamusi in November 2010. Dr. Onamusi diagnosed fibromyalgia with generalized muscle pain and fatigue, in addition to COPD. In his physical examination notes, Dr. Onamusi documented Minnick's ambulatory limitations: Minnick walked with a short gait, appeared to be in discomfort while he walked, needed a cane for long distance ambulation, and had difficulty transferring onto and off of the examination table due to pain. He also noted that Minnick had “few areas of trigger points.” Another DDB consultant, Dr. J. Sands, reviewed Minnick's medical records in November 2010, but never examined him. After a review of the records, Dr. Sands opined that in an eight hour work day, Minnick could stand or walk for two hours and sit for six. He also stated Minnick could occasionally lift ten pounds, frequently lift less than ten pounds, could never climb ladders, ropes, kneel, crouch, or crawl, but could occasionally climb ramps or stairs, or balance or stoop. Dr. Sands' report did not reference Minnick's history of x-ray or MRI results.

In December 2010, Minnick saw Dr. Jose Panszi, complaining of pain in his legs from the hips down. Dr. Panszi documented Minnick's worsening pain, as well as his use of a cane and, alternatively, a walker.

In January 2011, Minnick saw Dr. Jon Karl for an orthopedic consultation. Dr. Karl noted a diminished range of motion in the lumbar spine, an antalgic gait, and positive straight leg raise tests in both legs. He diagnosed degenerative disc disease, prescribed Vicodin, and advised an epidermal steroid injection, which Minnick received a few days later. The day following the injection, Dr. Harvey prescribed a cane and a walker to help Minnick walk.

In February 2011, Minnick called Dr. Karl's office to report radiating pain up and down his spine. While visiting Dr. Karl's office a few days later, Minnick complained of constant pain. Barbara Starry, a nurse practitioner in Dr. Karl's office, upgraded Minnick's pain relief to Methadone. Dr. Karl also ordered an MRI, which showed degenerative disc disease and disc protrusions at L4–5 and L5–S1 in the lumbar vertebrae.

In April 2011, Minnick saw physical medicine and rehabilitation specialist Dr. Jason Sorg. Dr. Sorg noted that Minnick demonstrated significant pain behaviors during the examination, and used a cane to steady his slow, guarded gait. He diagnosed a central disc extrusion and concluded that spinal surgery would likely not provide significant relief to his widespread pain. He felt Minnick would benefit from a multidisciplinary chronic pain program. Subsequently, Minnick began physical therapy, which he attended from late April through June 2011. Throughout the course of physical therapy, Minnick continued to experience radiating pain, but also admitted that some days the therapy seemed to help. His therapist noted that Minnick used either a walker or a cane to maneuver around his home.

In July 2011, Dr. Karl again noted Minnick's continued complaints of severe pain and that Methadone had not helped alleviate the pain. He prescribed Oxycontin and Norco instead.

In August 2011, Minnick met with Dr. Rudy Kachmann, a neurologist, to discuss his severe pain and possible surgical options. On examination, Dr. Kachmann documented that Minnick was hypersensitive to touch over the skin, musculature on his neck, and mid and lower back—symptoms all consistent with fibromyalgia. Although Dr. Kachmann diagnosed fibromyalgia, he noted that Minnick's x-rays did not reveal anything connected to his pain problem and opined that Minnick suffered from “centralized cerebral pain.” In hopes of alleviating his pain, Dr. Kachmann recommended that Minnick be weaned off narcotics, encouraged him to exercise, and suggested he read books about his condition. At a follow-up examination in October, Dr. Kachmann documented that Minnick had reduced his narcotics use—he had stopped taking Oxycontin entirely and was on a reduced dosage of Norco. He also noted that Minnick appeared to be in severe pain, was using a cane, and was still hypersensitive to touch. As a result of these findings, Dr. Kachmann diagnosed severe fibro-myalgia and migraines. He also stated that a person in such a terrible pain condition could not be reeducated for work. Finally, he concluded that Minnick was “clearly disabled” and could not bend, twist, or lift more than five pounds on a regular basis.

B. The November 16, 2011, Administrative Hearing

At the time of his hearing, Minnick was 46 years old. He testified that he was a truck driver for 24 years until taking short term leave in 2008 due to pain in his legs and hip. After returning to work, he was laid off.

He also testified to his pain and impairments. He described a state of constant pain in his hips, legs, and back of the head. In an attempt to manage his pain, Minnick's wife packs his legs in ice every morning while he is still in bed, where he stays for an hour and a half until he is he able to get up. The ice numbs his pain for about 5 hours, after which he has to lie down again because the pain becomes too intense. Due to the pain, he testified that he could sit for “probably about 30 minutes at the most” and stand for 20 minutes at a time. Occasionally, his wife would have to dress him because he is unable to bend. He also stated he is unable to help with any household chores.

When asked about additional limitations due to upper extremity...