Terry v. Astrue

• Decision Date: 08 March 2011
• Docket Number: CAUSE NO. 3:09-CV-503 JD
• Citation: Terry v. Astrue, CAUSE NO. 3:09-CV-503 JD (N.D. Ind. Mar 08, 2011)
• Parties: PATRICIA A. TERRY, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Northern District of Indiana

PATRICIA A. TERRY, Plaintiff,

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

CAUSE NO. 3:09-CV-503 JD

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

Dated: March 8, 2011

Opinion and Order

On October 21, 2009, Plaintiff, Patricia A. Terry ("Terry"), filed her Complaint. [DE 1]. On February 18, 2010, Terry filed an opening brief in support of her request for remand of the ALJ's decision. [DE 14]. On June 4, 2010, Defendant, Commissioner of Social Security ("Commissioner"), filed a response brief in opposition. [DE 21]. On June 16, 2010, this case was reassigned to the undersigned for all purposes. On June 18, 2010, Terry filed a reply. [DE 23].

I. Procedural History

On February 22, 2006, ¹ Terry filed an application under Title II of the Social Security Act for a period of disability and Disability Insurance Benefits ("DIB"). (Tr. 25, 85-87). On the same day, Terry also filed a Title XVI application for Supplemental Security Income ("SSI").²(Tr. 25, 337-39). In her applications, Terry claimed disability due to back problems, car accidentresiduals, spasmodic spine, knee arthritis, stomach hernia, and irregular heartbeat and asserted an alleged onset date of October 9, 2005. (Tr. 25, 68, 85, 337). On June 24, 2006, Terry's initial applications were denied, (Tr. 25, 70-73); and, on September 11, 2006, her request for reconsideration was denied. (Tr. 25, 66). On October 19, 2006, Terry filed a timely request for a hearing with an Administrative Law Judge ("ALJ"). (Tr. 65).

On September 10, 2008, Terry appeared with counsel and testified at a hearing before an ALJ. (Tr. 25). An impartial vocational expert ("VE") also appeared at the hearing. (Tr. 25). On April 13, 2009, the ALJ found that Terry was not disabled under the Social Security Act, concluding that she had the residual functional capacity³ ("RFC") to perform jobs that exist in significant numbers in the national economy. (Tr. 25-37).

Specifically, the ALJ found that Terry had not engaged in substantial gainful activity since October 9, 2005, and that she suffered from severe impairments of chronic lower back pain; osteoarthritis of the knees; a ventral hernia in the abdomen; morbid obesity, and depression. (Tr. 27). However, the ALJ determined that Terry did not have any impairment or combination of impairments that met the description of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 28). Specifically, the ALJ found that the claimant's severe physical impairments, either individually or in combination, did not meet or medically equal the criteria of any listed impairment. (Tr. 28). Instead, the ALJ found that Terry had the RFC to perform sedentary work⁴ with the additional limitations that she can onlyperform simple, routine tasks and can only engage in occupations which do not require climbing and which only require occasional balancing, stooping, crouching, kneeling or crawling. (Tr. 30). Based on this RFC finding, the ALJ concluded that Terry was not capable of performing any past relevant work. (Tr. 35). Further, utilizing the Vocational Guidelines ("Grids") as a framework and relying on the VE's testimony, the ALJ concluded that a significant number of jobs existed in the national economy that Terry could still perform. (Tr. 35-36). Consequently, the ALJ determined that Terry was not disabled, thereby, denying Terry's applications for DIB and SSI. (Tr. 36). On July 13, 2009, the Appeals Council denied Terry's request for review, making the ALJ's decision the final decision of the Commissioner in regards to Terry's disability claims. (Tr. 7-9). 42 U.S.C. § 405(g); 20 C.F.R. § 404.981; see Fast v. Barnhart, 397 F.3d 468, 470 (7th Cir. 2005). On October 21, 2009, Terry filed her Complaint pursuant to 42 U.S.C. § 405(g), alleging that the ALJ's decision was erroneous and not supported by substantial evidence. [DE 1].

II. Facts

At the time of Terry's alleged onset date, October 9, 2005, Terry was forty-four years old. (Tr. 85). At the time of the ALJ's decision, Terry was forty-seven years old. (Tr. 30, 85, 342). Terry has an eleventh grade education, and her past relevant work includes work as a janitor. (Tr. 35). Terry has not performed substantial gainful activity, however, since her alleged onset date. (Tr. 27, 78-79, 85, 337). Terry is insured for the purposes of the statusrequirements of the Act through December 31, 2007.⁵ (Tr. 78-79).

A. Terry's Testimony

Terry alleges that she suffers from both exertional and non-exertional impairments. Specifically, Terry contends that she is disabled due to a ventral hernia, osteoarthritis of the knees, chronic low back pain, morbid obesity, and depression. (Tr. 27, 344-45). Terry testified that she last worked in 2005, performing maintenance work at Glen Haven Management. (Tr. 343). Terry asserted that she stopped working due to her ventral hernia, which was causing her to feel stomach pressure when bending or lifting. (Tr. 344). Terry additionally testified that she suffers from back pain, knee pain, and depression, all of which also limited her ability to work. (Tr. 345). Terry testified that she has not had surgery to repair her ventral hernia because of her weight and irregular heartbeat. (Tr. 349-50). She also explained that she could not have surgery to repair her knees because of her weight. (Tr. 350). Terry asserted that, although her doctors had enrolled her in weight loss programs, she was unable to complete them due to her thyroid problem and pain during exercise. (Tr. 351).

Terry additionally testified that she feels sharp pains in her back and a lot of pressure in her stomach. (Tr. 346). Further, Terry stated that standing and sitting aggravated her stomach and knee pain, and she was limited to ten to fifteen minutes doing those activities without discomfort. (Tr. 346-47). Terry also testified that her knees occasionally give out, preventing her from walking more than half a block at a time. (Tr. 347).

Regarding her daily activities, Terry testified that she makes her bed, washes dishes, sweeps the floor, and cooks. (Tr. 348). Terry explained that she has to periodically lie down while performing the aforementioned tasks, in order to reduce her stomach and knee pain as well as swelling in her legs and feet. (Tr. 348, 353-54). Terry also stated that she leaves her apartment every once in a while to visit friends and visit the grocery store. (Tr. 349). Finally, Terry stated that she also engages in flowering, gardening, and camping. (Tr. 349).

On June 2, 2006, Terry's daughter provided a report regarding Terry's daily activities. (Tr. 135-46). In the report, Terry's daughter indicated that Terry could perform housework and personal care but could not stand or bend for prolonged periods of time. (Tr. 136-37). Specifically, Terry's daughter stated that Terry prepared her own meals and did all of the house and yard work, though she explained that it took Terry longer to perform these activities due to knee pain. (Tr. 138). In slight contrast to Terry's testimony, Terry's daughter asserted that Terry went out every day, drove, visited friends, and shopped. (Tr. 139-40). Finally, Terry's daughter noted that Terry had no problems getting along with others but did not handle stress well. (Tr. 141-43).

B. Medical Evidence

1. Treating Physicians

a. Dr. Kenneth D. Shively

On January 29, 2004, Dr. Kenneth D. Shively began treating Terry upon initial complaints of fatigue and dyspnea on exertion. (Tr. 210). At the time of Terry's initial appointment, Terry weighed 293 pounds. (Tr. 210). Dr. Shively diagnosed Terry with morbid obesity, fatigue, history of anemia, and history of hypercholesterlemia. (Tr. 210). On July 29, 2004, Dr. Shively additionally diagnosed essential hypertension, morbid obesity, and bilateralosteoarthritis of the knees bilaterally. (Tr. 204). On August 23, 2004, Dr. Shively diagnosed right LS spasms in Terry's back. (Tr. 202). On September 10, 2004, Dr. Shively additionally diagnosed hyperlipidemia. (Tr. 197).

On January 17, 2005, Dr. Shively opined that it was imperative that Terry's hernia be repaired before it became incarcerated. (Tr. 188). As a result, Dr. Shively referred Terry for an exercise stress test, which was performed on January 20, 2005. (Tr. 186, 188). On June 14, 2005, Terry went to see Dr. Shively following three episodes of heart palpitations. (Tr. 181). Dr. Shively instructed Terry to wear a heart monitor for two weeks. (Tr. 181). On July 5, 2005, the monitor revealed that Terry had experienced two more abnormal, palpitation episodes. (Tr. 173). As a result, Terry was prescribed Atenolol. (Tr. 173). On September 8, 2005, Terry called Dr. Shively's office, reporting a rapid heartbeat and panic attacks. (Tr. 172). Terry stated that she "refuse[d] to take the medication" and requested alternative treatment. (Tr. 172). Dr. Shively's office responded that Terry needed to avoid caffeine and cigarettes, and needed to lose weight. (Tr. 172).

b. Dr. John Rogers

On November 7, 2006, Terry began seeing Dr. John Rogers as her primary care physician. (Tr. 278). Dr. Rogers diagnosed Terry with a ventral hernia, hypertension, morbid obesity, history of anemia, and history of hyperlipidemia. (Tr. 278). Over the next several years, Terry continued to receive ongoing treatment from Dr. Rogers; and, on several occasions, Dr. Rogers recommended that Terry adhere to a restricted diet. (Tr. 266-74). Throughout her treatment with Dr. Rogers, Terry failed to show at appointments in December of 2006, May and September of 2007, and February, June, and July of 2008. (Tr. 266, 268, 272, 277, 320, 323).Further, on July 7, 2009, Dr. Rogers noted that Terry was not taking her blood pressure or thyroid medications as prescribed. (Tr. 321).

On February 4, 2008, Dr. Rogers examined Terry for a Medicaid physical and diagnosed uncontrolled hypertension and hypothyroidism. (Tr. 267). Additionally, on August 25, 2008, Terry...