Misener v. Astrue

• Decision Date: 20 February 2013
• Docket Number: Cause No. 1:12–CV–36 JD.
• Citation: 926 F.Supp.2d 1016
• Parties: Douglas K. MISENER, Plaintiff, v. Michael J. ASTRUE, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Northern District of Indiana

926 F.Supp.2d 1016

Douglas K. MISENER, Plaintiff,

v.Michael J. ASTRUE, Commissioner of Social Security, Defendant.

Cause No. 1:12–CV–36 JD.

United States District Court,

N.D. Indiana,

Fort Wayne Division.

Feb. 20, 2013.

Frederick J. Daley, Jr., Daley Debofsky and Bryant, Chicago, IL, for Plaintiff.

Carole J. Kohn, Diana Swisher Andsager, Social Security Administration, Chicago, IL, Deborah M. Leonard, U.S. Attorney's Office, Fort Wayne, IN, for Defendant.

OPINION & ORDER

JON E. DEGUILIO, District Judge.

On October 1, 2008, Claimant Douglas Misener applied for Social Security Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”), ¹ [DE 1 ¶ 6], alleging a disability onset date of June 27, 2006. He claimed he was disabled due to symptoms associated with bi-polar disorder; attention deficit disorder; attention deficit hyperactivity disorder; depression; bilateral degenerative joint disease; chronic axial pain; osteoarthritis; and lupus. [R 79]. On February 17, 2009, Misener's initial applications were denied [R 76], and on May 6, 2009, his request for reconsideration was denied. [R 91]. On July 1, 2009, Misener requested a hearing before an Administrative Law Judge (“ALJ”). [R 101].

The hearing was held on June 24, 2010. Misener appeared with counsel and testified on his own behalf before an ALJ presiding remotely from Chicago. [R 111–12]. An impartial Vocational Expert (“VE”) also appeared at the hearing. [R 66]. On October 7, 2010, the ALJ found that Misener was not disabled under the Social Security Act, concluding that he had the residual functional capacity (“RFC”) ² to perform jobs that exist in significant numbers in the national economy. [R 24]. On December 7, 2011, the Appeals Council denied Plaintiff's request for a review of the ALJ's decision, at which point the ALJ's decision became the final decision of the Commissioner. [R 1].

On February 3, 2012, Misener filed his Complaint in this Court pursuant to 42 U.S.C. § 405(g), alleging that the ALJ's decision was in error. [DE 1]. On July 2, 2012, Misener filed his opening brief. [DE 16]. On October 1, 2012, the Commissioner filed his response. [DE 23]. On October 15, 2012, Misener filed his reply. [DE 24]. Although most of the arguments Misener has advanced are actually meritless, this Court finds that a remand is necessary because the ALJ found that Misener suffers from moderate limitations on concentration, persistence and pace, but failed to incorporate that limitation into his RFC or into his hypothetical questions to the VE.

BACKGROUND³

Douglas Misener was born on May 16, 1971. He was 35 years old on the alleged date of onset of his disability, and he is 41 years old currently. [R 166]. Misener was 6'2? and weighed 255 pounds at the time of his applications. He attended school through the seventh grade, which he completed in 1985. [R 38, 170, 176]. Misener's past employment includes positions as a stocker/cashier, concrete specialist, and cook. [R 172]. He has not performed substantial gainful activity (“SGA”) since his alleged onset date of June 27, 2006, and he was insured for the purposes of DIB through at least December 31, 2011. [R 161–62]. For some time, Misener has suffered from chronic pain, related to various medical problems. His medical history, as reproduced in the record, begins in earnest in 2005. It is useful to view his physical and mental ailments and progressions separately.

A. Physical Health History

On November 1, 2005, Misener scheduled an appointment with Dr. David W. Spight, D.O., due to neck pain, headaches, bilateral knee pain, and paresthesias involving the toes of both feet. [R 315]. He claimed that a five year-old work-related injury had led to a series of surgeries and related procedures: left knee surgery for repair of a possible left knee dislocation; two arthroscopes to the left knee and one arthroscope to the right knee; physical therapy on both knees, and “failed Cortisone and Synvisc injections in both knees.” [R 315]. He also reported a history of unsuccessful medication relative to his migraineheadaches; prior treatment of the headaches with Stadol left him “wasted” afterwards, and Aleve, Excedrin Migraine, Tylenol Migraine, Imitrex, Relpax, Darvocet, Norco, Topamax, Keppra and Stradol had all failed due to side effects or inefficacy. [R 316].

From that date until roughly March of 2007, Misener saw medical professionals approximately once a month for consultations and treatment related to the same ailments. The doctors attempted to treat and control Misener's various sources of pain with a series of medications, and with varying degrees of success. Early in the process, some medications had extremely unpleasant side effects, including one episode in which Misener reported to the Emergency Room with nausea, vomiting, sweating, and shaking. [R 253 (Jan. 16, 2006 visit) ]. By the end of this approximately 1.5 year period of treatment, however, physicians' notes showed that medication was generally providing “fair” to “good” pain control and having no side effects. [R 270; R 275; R 277]. More detail about Misener's medical history during this time period is included in the court's discussion where relevant.

In any case, the relative stabilization of Misener's symptoms in 2007 did not mean an end to his troubles. His pain continued, and on January 22, 2009, Misener began a long-standing relationship with the Center for Pain Relief when he made an appointment with Dr. William Hedrick to discuss his ongoing bilateral knee pain. Misener described the pain as constant, stabbing and burning, worse on the left than on the right, aggravated by walking, weather changes, and stairs, and rated at a 7/10 in severity at the time, but 9/10 at its worst. [R 395]. Misener also reported pain in the lumbar region that radiated across the back and extended down to the toes and described as constant, throbbing, burning, and numb, and rated it at 6/10 in severity at the time and 8/10 at its worst. Id. Bending, lifting, twisting, pushing, pulling, crawling, stooping, walking, weather changes, and stairs aggravated the lumbar pain. Id. He also noted numbness in his toes. Id. So, in many respects, the symptoms of which Misener complained were the same ones he was treated for from November of 2005 through March of 2007, but during this phase of treatment the records contain more detail. Dr. Hedrick's physical exam found sacroiliac joint tenderness bilaterally, myofascial and knee tenderness, a positive straight leg raise test, lumbar facet tenderness, decreased knee range of motion, and positive Lachman's test, McMurray's test, and Patrick's sign. [R 396]. The impressions were left knee arthralgia, chronic pain syndrome, diabetes mellitus, bilateral sacroilitis, and bilateral lumbar facet arthropathy. Id.

By this time, Misener was also attempting to secure benefits from the Social Security Administration. As a part of that process, on January 31, 2009, Misener underwent a consultative exam conducted by Dr. Rowena C. Yu, M.D. [R 413]. The diagnoses were bilateral knee pain status-post multiple surgeries, lower back pain, a bipolar disorder, left ankle pain status-post multiple surgeries, left elbow and wrist pain status-post surgery, osteoarthritis, probable systemic lupus erythematosus, diabetes mellitus Type II, and hypertension. [R 416–17]. Specifically, Misener was noted as getting on and off the exam table with moderate difficulty, having a normal ambulation, “severe limitation of movement in all directions” in the cervical spine, lumbar spine, bilateral hips, and bilateral knees, being able to lay straight back on an exam table and roll to one side only with moderate difficulty, being unable to walk on heels or walk heel-to-toe, being able to walk or lift toes with severe difficulty, and being able to squat only 20% of the way. [R 415–16]. Misener told Dr. Yu that he could stand for a total of 2 hours, sit for one hour, and lift 15 pounds. [R 414]. Misener also noted he could not sweep, mop, vacuum, or mow the grass. Id.

On February 12, 2009, non-examining state-agency reviewer Dr. F. Lavallo, M.D., completed a physical RFC assessment. He indicated, generally speaking, that Misener was capable of light work with occasional posturals. [R 418–25]. Dr. Lavallo's specialization is occupational medicine and he acknowledged that there were no treating or examining source statements in the file when he reviewed it. [R 424–25]. Dr. Richard Wenzler, M.D., affirmed Dr. Lavallo's assessment on May 6, 2009. [R 449].

Misener continued to seek treatment. On May 15, 2009, Misener was treated for bilateral knee pain rated at 7/10 in severity and lumbar back pain rated at 6/10. [R 550]. The physical exam found sacroiliac joint tenderness bilaterally, myofascial tenderness, a positive Patrick's sign, lumbar facet tenderness, and face loading. [R 551]. On May 22, 2009, Dr. Hedrick administered lumbar and sacroiliac joint steroid injections, and a caudal epidural steroid injection to Misener. [R 548]. A May 28, 2009, lumbar spine MRI revealed degenerative changes, widened L4–L5 facets, and levoscoliosis. [R 466]. Subsequently, on June 8 and 10, 2009, Misener rated his bilateral knee pain to be 7/10 and his lumbar back pain to be at a level of 6/10. [R 542, 545]. The physical exam found the same results as before. [R 543, 547]. On July 29, 2009, Plaintiff was treated by Dr. Anuradha Kollipara for diabetes, chest pains, tightness in his legs, numbness in his feet, shortness of breath, and the feeling that his head was “going to explode.” [R 478]. This began a period in which Misener was treated by both Drs. Kollipara and Hedrick.

Misener saw Dr. Kollipara five times, in total, all in the latter part of 2009. On February 5, 2010, Dr. Kollipara completed an RFC assessment, finding that Misener could never lift or carry anything—not even up to 10 pounds—could only sit for 15 minutes total in an 8–hour workday, stand...