Ottman v. Barnhart, Civil Action No. 3:03-CV-0217.

• Decision Date: 17 February 2004
• Docket Number: Civil Action No. 3:03-CV-0217.
• Citation: 306 F.Supp.2d 829
• Parties: Leletta OTTMAN, Plaintiff, v. Jo Anne B. BARNHART, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Northern District of Indiana

306 F.Supp.2d 829

Leletta OTTMAN, Plaintiff, v. Jo Anne B. BARNHART, Commissioner of Social Security, Defendant.

Civil Action No. 3:03-CV-0217.

United States District Court, N.D. Indiana, South Bend Division.

February 17, 2004.

Order on Motion to Alter or Amend March 3, 2004.

COPYRIGHT MATERIAL OMITTED

Carter Zerbe PHV, Charleston, WV, for Plaintiff.

Clifford D. Johnson, U.S. Attorney's Office, South Bend, IN, for Defendant.

MEMORANDUM AND ORDER

ALLEN SHARP, District Judge.

This is an action for judicial review of Defendant's final decision that Plaintiff, Leletta Ottman, ("Ms. Ottman") was not entitled to a period of disability and Disability Insurance Benefits ("DIB") under Title II of the Social Security Act, as amended. See 42 U.S.C. §§ 416(i), 423(d). Ms. Ottman filed her application for benefits on July 13, 1999, alleging that she had been unable to work since March 16, 1999, due to back and hand pain, headaches, blurred vision, and her "nerves" (Tr. 63-65, 359). After the agency denied her application initially and on reconsideration, Ms. Ottman requested a hearing before an Administrative Law Judge (ALJ) (Tr. 46-47, 57-58).

On March 1, 2001, Ms. Ottman, represented by counsel, and a vocational expert testified before the ALJ (Tr. 350-89). In a decision dated May 1, 2001, the ALJ found Plaintiff not disabled because she could perform her past relevant work as a telephone solicitor, or alternatively, a significant number of other jobs (Tr. 21-35). The Appeals Council's denial of Ms. Ottman's request for review left the ALJ's decision as the final decision of the Commissioner. See 20 C.F.R. § 404.981. Ms. Ottman now seeks judicial review pursuant to 42 U.S.C. § 405(g).

I. Background

A. Hearing Testimony

Ms. Ottman was born in 1955. She was forty-five years old at the time of the ALJ's decision, and thus, considered a "younger individual" as defined under the regulations. 20 C.F.R. § 404.1563(c) (Tr. 31). She had a GED and past relevant work experience as a telephone solicitor, peddler, greenhouse laborer, and carpet sewer (Tr. 353-57). Ms. Ottman testified that she stopped working in March 1999 due to back and hand pain, headaches, blurred vision, and her "nerves" (Tr. 353, 357, 359, 367). Ms. Ottman additionally stated that her hands hurt if she used them too much (Tr. 367). Heat and humidity accentuated her breathing problems, which she had due to a history of smoking (Tr. 369).

Ms. Ottman also had a history of headaches, which would last for two or three days and made her sick to her stomach (Tr. 357-70). Ms. Ottman stated that she injured her back at work when a chair was pulled out from under her, causing her to hit her shoulders on a metal cabinet and land her buttocks on a concrete floor (Tr. 358). Ms. Ottman stopped working after this accident because she could not ride in her car long enough to get to work without her back hurting (Tr. 364).

At the time of the hearing, she saw Dr. Holley at a pain clinic every two weeks (Tr. 362-63). Dr. Holley prescribed pain medication for her back and BuSpar and Paxil for her depression, but she averred that the medicines made her "drowsy" (Tr. 365). When questioned on her alleged mental impairment, Ms. Ottman said that, other than the state agency psychologist consultations, she had not been to a psychologist, but she was hospitalized for depression in October 1998, which was prior to her alleged onset date (Tr. 358-59).

Ms. Ottman stated that she slept 90% of the time during a typical day (Tr. 365). She did no household activities (Tr. 365, 368). She stated she did not go out except to see the doctor every two weeks (Tr. 366). Sitting or standing in one place for more than ten minutes exacerbated her pain and required walking around for relieve of her symptoms (Tr. 366, 369). Ms. Ottman stated she could not squat, bend, or lift more than seven pounds (Tr. 367-68).

B. Medical Evidence

i. Physical

On March 8, 1999, Ms. Ottman went to the emergency room with complaints of lower back pain (Tr. 157-58). A chair had been pulled out from under her at work causing her to land on her tailbone and hit her shoulder and back (Tr. 157-58). X-rays taken in the emergency room showed mild degenerative changes, spurring at L3-4, and mild disc space narrowing at L5-S1 (Tr. 157-59). She was negative for headache, blurred or double vision, or neck pain (Tr. 157).

Ms. Ottman denied problems with her mental status, but reported that since her hysterectomy she needed nerve pills (Tr. 157). The attending physician diagnosed Ms. Ottman with acute lumbar sprain and released her with prescribed Motrin and instructed her to rest and remain off work for three days (Tr. 156-58). A subsequent MRI taken on March 16, 1999, revealed degenerative changes at L1-2, L5-S1, mild degree of spinal stenosis at L1-2, L2-3, and L3-4, and mild facet arthropathy (Tr. 160).

Ms. Ottman saw Danny R. Westmoreland, D.O., following her release at the hospital to discuss her test results (Tr. 167). She continued to complain of back pain and the physician recommended both oral medications and physical therapy (Tr. 167). Ms. Ottman returned to Dr. Westmoreland approximately every two weeks from March-May 1999 reporting no improvement of her symptoms (Tr. 165-67).

Dr. Westmoreland referred Ms. Ottman to Daniel Black, D.O. (Tr. 176-77, duplicates at Tr. 303-06). Dr. Black saw Ms. Ottman in May 1999 (Tr. 175). She reported that her thoracic and lumbar symptoms were improving, but her tailbone symptoms continued (Tr. 175). Ms. Ottman told Dr. Black that she could stand for 5 minutes, sit for 15 minutes, lift 10 pounds, and walk 10 minutes (Tr. 177). She had no compromise in her activities of daily living, but some compromise in her sport recreation (Tr. 177).

On examination, Dr. Black's impressions were thoracolumbar strain, coccydynia traumatic in nature, questionable occult fracture at the coccyx (tailbone), and questionable sciatica (Tr. 177). The physician recommended electromyography (EMG), pain medication, manipulative therapy, and steroid injections (Tr. 176-77).

Later that month, June 1999, Ms. Ottman reported increased symptoms following manipulation (Tr. 175). Dr. Black recommended pain medications and use of a U-shaped pillow (Tr. 175). The physician questioned whether Ms. Ottman had a secondary gain intention and recorded in his treatment notes that, contrary to her complaints and examination, Ms. Ottman was seen ambulating in the hall without difficulty and his office staff apparently "watched her in the parking lot, [noting that she] easily got in and out of her car" (Tr. 175). At a following visit later that month, Dr. Black again noted Ms. Ottman's ability to ambulate better in the parking lot rather than the office (Tr. 175).

A July 1999 EMG was normal and showed no evidence of radiculopathy (Tr. 173-74). Dr. Black's impressions were coccydynia, and sciatic pain referred, but not true neurologic in nature (Tr. 174). In August 1999, Dr. Black referred Ms. Ottman to Robert Lowe, M.D., for a second opinion (Tr. 178-80). The physician reviewed the medical evidence, noting that Ms. Ottman's lumbar spine MRI showed no major abnormality and x-rays of the coccyx showed normal alignment (Tr. 178).

On examination, Ms. Ottman's reflexes were intact and sitting straight leg raising was negative (Tr. 179). Dr. Lowe noted Ms. Ottman reported pain when lying down and she was able to flex forward 60-70 degrees without pain symptoms (Tr. 179). Dr. Lowe saw no indication of chronic orthopedic interference and recommended that Ms. Ottman perform abdominal exercises for strengthening (Tr. 178-80).

Ms. Ottman saw Robert Holley, M.D., approximately once a month from August 1999 to February 2001 (Tr. 207-27, 259-77). In August 1999, Ms. Ottman reported lower back pain associated with a March 1999 work-related incident (Tr. 227). During this and subsequent office visits, Dr. Holley described Ms. Ottman as being in no acute distress with an antalgic gait and some back spasm (Tr. 207-27, 259-77). She had difficulty rising from a sitting position, moderate difficulty with heel-toe walk, and could perform minimal squatting without assistance (Tr. 207-27, 259-77). Dr. Holley prescribed oral medication (Tr. 207-287, 259-77).

In October 1999, Dr. Holley obtained a lumbar spine x-ray which revealed degenerative changes at L3-4 and the physician diagnosed lumbar strain and sprain (Tr. 211, 220). A July 2000 MRI revealed minimal disc bulging with mild degenerative changes but no herniation (Tr. 268). In February 2001, Dr. Holley completed a residual functional capacity questionnaire (Tr. 248-56). The physician expressed the opinion that Ms. Ottman would experience pain during two-third's of a 3-hour day (Tr. 248). He also noted that she could walk 1-2 city blocks; continuously sit or stand at one time for up to 15 minutes; sit and stand/walk 2 hours in an 8-hour day; walk around every 10 minutes; require the option to shift positions at will; and would need unscheduled breaks during the day, resting 10 minutes before returning to work (Tr. 248-49). In addition, Ms. Ottman could never lift more than 11 pounds, but could occasionally lift 1 to 10 pounds (Tr. 250). Dr. Holley also opined that Ms. Ottman had slightly limited to moderately limited mental restrictions (Tr. 253-55).

Bernard Nolan, M.D., examined Ms. Ottman for Workers Compensation in October 1999 (Tr. 293-302, duplicated pages at Tr. 204-06). Dr. Nolan observed that Ms. Ottman's MRI and X-rays revealed mild degenerative disc disease with no disc herniation, not related to the injury, and that an EMG was normal (Tr. 205). On examination, Dr. Nolan observed that Ms. Ottman moved about the examination room with little difficulty and that she was able to get on and off the examination table without assistance (Tr. 295). She had straight leg raising with both lower extremities to 90 degrees and some mild diminished flexion (Tr. 295, 298). She...