Rust v. Colvin, CAUSE NO.: 2:12-CV-325-PRC

• Decision Date: 30 July 2013
• Docket Number: CAUSE NO.: 2:12-CV-325-PRC
• Parties: KIMBERLY SUE RUST, Plaintiff, v. CAROLYN W. COLVIN, Commissioner of the Social Security Administration, Defendant.
• Court: U.S. District Court — Northern District of Indiana

KIMBERLY SUE RUST, Plaintiff,

v.CAROLYN W. COLVIN, Commissioner of the Social Security Administration, Defendant.

CAUSE NO.: 2:12-CV-325-PRC

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA HAMMOND DIVISION

So ORDERED: July 30, 2013

OPINION AND ORDER

This matter is before the Court on a Complaint [DE 1], filed by Plaintiff Kimberly S. Rust on August 13, 2012, and Plaintiff's Brief in Support of Complaint [DE13], filed December 6, 2012. Plaintiff requests that the Court reverse the Administrative Law Judge's decision of March 24, 2011, denying her child insurance benefits and supplemental security income, and remand for further administrative proceedings. For the reasons set forth below, Ms. Rust's request is denied, and the Court affirms the decision of the Administrative Law Judge.

PROCEDURAL BACKGROUND

Plaintiff Kimberly Rust filed applications for Supplemental Security Income Benefits ("SSI") and Disability Insurance Benefits under Child Disability ("CIB"), on September 2, 2009.¹ Both applications were denied initially on December 22, 2009, and on reconsideration on March 3, 2010. Ms. Rust was granted her request for a hearing before an Administrative Law Judge ("ALJ"), which took place via video conference on February 10, 2011, with ALJ Roxanne Kelsey. Ms. Rust wasrepresented by her attorney. Ms. Rust, her mother, and a vocational expert ("VE") testified at the hearing. The ALJ made the following findings:

1. Born [in 1986], the claimant had not attained age 22 as of January 1, 2002, the alleged onset date (20 CFR 404.102, 416.120(c)(4) and 404.350(a)(5)).

2. The claimant has not engaged in substantial gainful activity since January 1, 2002, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).

3. The claimant has the following severe impairments: a back condition with ongoing pain and radiculopathy following surgical excision of lymphomas;² impairments impacting her left knee, including degenerative disease; headaches; obesity; alcohol use; and anxiety/depression (20 CFR 404.1520(c) and 416.920(c)).

4. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).

5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except no more than occasional pushing or pulling with her left lower extremity. She can occasionally climb ladders, ropes or scaffolds, kneel, crouch, or crawl. She should have no more than occasional contact with supervisors, coworkers and the public. The claimant would need a sit and stand option but would be able to remain on task.

6. The claimant has no past relevant work (20 CFR 404.1565 and 416.965).

7. The claimant was born [in 1986] and was 23 years old, which is defined as a younger individual age 18-49, on the application date (20 CFR 404.1563 and 416.963).

8. The claimant has a limited education and is able to communicate in English (20 CFR 404.1564 and 416.964).

9. Transferability of job skills is not an issue because the claimant does not have past relevant work (20 CFR 404.1568 and 416.968).

10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).

11. The claimant has not been under a disability, as defined in the Social Security Act, from January 1, 2002, through the date of the decision (20 CFR 404.350(a)(5), 404.1520(g) and 416.920(g)).

(AR 21-31).

The ALJ issued her decision on March 24, 2011, and the Appeals Council declined review on May 2, 2012, establishing the ALJ's decision as the final determination of the Commissioner of Social Security ("Commissioner"). Following denial of review, Ms. Rust was referred to new counsel and, after the Appeals Counsel granted Ms. Rust's request for an extension of time, Ms. Rust timely filed her Complaint.

FACTUAL BACKGROUND

A. Background

Plaintiff Kimberly Rust was born in 1986. Ms. Rust was 23 years old at the time she filed her applications and 25 years old at the time the ALJ issued her decision. Ms. Rust worked as a cashier and waitress, but she has not worked since 2006 and never earned much more than $2,000 in one year. The VE and the ALJ each concluded that Ms. Rust has no past relevant work. At the time of the hearing, Ms. Rust lived with her sister. Ms. Rust cares for her three young children.

B. Medical History

Ms. Rust has a medical history of back and knee issues, mental health issues, and migraine headaches, each of which are discussed in turn.

1. Back and Knee Issues

Ms. Rust first reported back problems to her family physician, Deepak Bhojraj, M.D., on April 20, 2001, describing low back pain and a lump on her back. From 2001 through 2007, Ms. Rust underwent five surgeries to excise recurring lipomas on her lower back. Ms. Rust complained about back pain intermittently to her doctors from 2001 to 2008. Ms. Rust first reported knee problems to Dr. Bhojraj on December 6, 2002, stating that she had woken a few days earlier with numbness in her left leg.

On January 7, 2003, an MRI of Ms. Rust's back was negative for any injury. On January 20, 2003, Dr. Abu-Aita performed a series of nerve tests on Ms. Rust's legs and found that the left leg had similar nerve function to the right leg. On January 21, 2003, an MRI of Ms. Rust's left leg was negative for any observable trauma or injury.

On January 29, 2003, Ms. Rust underwent a consultative examination by Daksha Vyas, M.D., a neurologist, who found normal gait and muscle system but also diagnosed low back pain with L5 radicular pain.³ On May 29, 2003, Ms. Rust's mother reported to Dr. Bhojraj that the leg numbness was gone. On July 18, 2003, Ms. Rust reported back pain as well as pain and cramps in her left leg. On July 24, 2003, Dr. Koh performed an EMG and found normal responses in both legs and normal insertional activities; the test did not show any denervational activities.

Ms. Rust reported back pain to Dr. Bhojraj on June 10, 2004, and he prescribed Tylenol #3. Two masses were found in her lower back on July 29, 2004, but surgery could not be performed because she was pregnant. Ms. Rust complained in April 2005 that she pulled a muscle in her back while playing football, and Dr. Bhojraj prescribed muscle relaxers. Ms. Rust complained ofcontinuing low back pain on July 15 and September 13, 2005, and requested more muscle relaxers. On December 9, 2005, Ms. Rust reported to Dr. Bhojraj that she experienced cramping in her left knee, and he prescribed her Neoprofen and a knee brace.

On April 7, 2006, a new MRI was taken to compare to the MRI of her left leg taken on January 21, 2003; the MRI revealed degenerative intrasubstance abnormality. An arthroscopic evaluation of the meniscus was recommended to rule out a subtle tear.

On May 16, 2006, Ms. Rust's mother reported that Ms. Rust did not have time for physical therapy because she was busy taking care of her baby. On June 8, 2006, Ms. Rust complained of low back pain, and she was referred to Dr. Andrews for knee pain. Later reports from Ms. Rust suggest she underwent arthroscopy in June 2006, performed by Dr. Andrews; however, there is no direct evidence in the record of this procedure. On November 15, 2006, Dr. Vyas reported that Ms. Rust could not tandem walk (heel-to-toe), stand on her heels, or stand on her toes on the left side.

On January 15, 2007, Plaintiff reported to Dr. Bhojraj that she had surgery on her left knee cap in June 2006, but that she is in constant pain at a level of 10 out of 10 on a pain scale on a daily basis; Dr. Bhojraj prescribed Percocet for the pain. On March 5, 2007, Dr. Bhojraj prescribed Vicodin because Percocet made her feel nauseous.

On March 6, 2007, Dr. Lee performed a consultative examination of Ms. Rust's left knee. He noted some tenderness in her knee-cap, that her quadriceps were very weak, 3 out of 5, with very tight hamstrings, that she had full range of motion in her hips, and that her left knee could bend from 0 to 105 degrees. He indicated that Ms. Rust was not a candidate for surgery.

After surgery to remove a lipoma from her back on March 24, 2007, Ms. Rust complained of back pain to Dr. Bhojraj on April 5, July 10, and October 4, 2007. On April 11, 2007, Ms. Rustcontinued to complain of low back pain and knee pain following her arthroscopic procedure. On August 30, 2007, Ms. Rust reported that her left knee pain had returned approximately one month earlier. On October 4, 2007, Ms. Rust reported low back pain and knee pain.

On January 29, 2008, Ms. Rust reported to Dr. Vyas that she had been taking three Vicodin per day instead of two for back pain. On January 29, 2008, Ms. Rust underwent an EMG test with Dr. Vyas, who concluded that the findings were suggestive of L5-S1 radiculopathy in the lower left extremity. On February 22, 2008, Ms. Rust reported that her left knee was painful to touch, but Dr. Bhojraj observed no abnormalities. On February 22, 2008, and March 25, 2008, Ms. Rust reported fatty tumors recurring in her back. On April 14, 2008, she told Dr. Vyas that her left knee pain was worsening. She complained of low back and knee pain to Dr. Vyas on May 7 and August 6, 2008. On October 24, 2008, Ms. Rust reported left knee pain to Dr. Vyas. On January 16, April 10, July 8, and September 30, 2009, Ms. Rust complained of knee pain to Dr. Vyas; she could not tandem walk, walk on heels, or walk on toes, at any of these sessions.

During a consultative examination with Teofilo Bautista, M.D., on December 13, 2009, Ms. Rust reported having knee surgery in 2006, which had caused her to experience continuous pain at a level of 10 out of 10 on a pain scale...