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Nitsch v. Commissioner of Social Security

United States District Court, D. Nebraska

April 16, 2014

JESSICA M. NITSCH, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

MEMORANDUM AND ORDER ON REVIEW OF THE FINAL DECISION OF THE COMMISSIONER OF SOCIAL SECURITY

WARREN K. URBOM, Senior District Judge.

Jessica M. Nitsch filed a complaint on March 20, 2013, against the Commissioner of the Social Security Administration. (ECF No. 1.) Nitsch seeks a review of the Commissioner's decision to deny her application for disability insurance benefits under Title II and Title XVI of the Social Security Act (the Act), 42 U.S.C. ยงยง 401 et seq., 1381 et seq. The defendant has responded to the plaintiff's complaint by filing an answer and a transcript of the administrative record. (See ECF Nos. 11, 12). In addition, pursuant to my order, dated May 28, 2013, (ECF No. 14), each of the parties has submitted briefs in support of her position. (See generally Pl.'s Br., ECF No. 15; Def.'s Br., ECF No. 25, Pl.'s Reply Br., ECF No. 26). After carefully reviewing these materials, I find that the Commissioner's decision must be affirmed.

I. BACKGROUND

Nitsch applied for disability insurance benefits in 2004, but she was denied. (See ECF No. 12, Transcript of Social Security Proceedings (hereinafter "Tr.") at 49, 51). She applied a second time on September 25, 2009, seeking benefits under Title II of the Act. (Id. at 155-61). She also filed an application for supplemental security income (SSI) benefits under Title XVI. (Id. at 162-65). In both applications, Nitsch alleged an onset date of March 21, 2003. (Id. at 155, 162). Nitsch later amended the onset date to April 24, 2008. (Id. at 13). After her application was denied initially and on reconsideration, (id. at 93-96, 98-101, 104-107, 108-111). Nitsch requested a hearing before an administrative law judge (hereinafter "ALJ"). (Id. at 114). This hearing was conducted on August 16, 2011. (Id. at 47-86). In a decision dated September 12, 2011, the ALJ concluded that Nitsch was not entitled to disability insurance benefits. (Id. at 10-31). The Appeals Council of the Social Security Administration denied Nitsch's request for review. (Id. at 1-6.) Thus, the ALJ's decision stands as the final decision of the Commissioner, and it is from this decision that Nitsch seeks judicial review.

II. SUMMARY OF THE RECORD

Nitsch, who was born August 6, 1964, (id. at 183) has a bachelor's degree, was single, and had no children. (Id. at 55-56, 196). Her previous application for disability was denied after a hearing on June 6, 2007. (Id. at 184). Nitsch stated that her conditions included depression, asthma, sinusitis, chronic fatigue syndrome (CFS), narcolepsy, attention deficit disorder (ADD), repetitive motion injuries to her right wrist and elbow, and migraine headaches. (Id. at 187). Nitsch had lived with her parents since returning to Omaha from Minneapolis in 2001. (Id. at 60). Her last paid employment had been for PayPal in 2003. (Id. at 235). Nitsch alleged that because of CFS and chronic sinus infections she is either too tired or too sick or both to leave the house. (Id. at 240).

A. Medical Evidence

Nitsch alleged that her medical problems began in 1997 when she was hospitalized with pneumonia in Minneapolis. (Id. at 339). She alleged that she was diagnosed with CFS in 2000.[1] (Id. at 339). In December 2007, Nitsch was diagnosed with severe idiopathic hypersomnolence, for which she was prescribed medication. (Id. at 311-12). In October 2008, George Thommi, M.D., noted that Nitsch's asthma appeared to be well-controlled on medication. (Id. at 313). Nitsch had sinus surgery in March 2009. (Id. at 367, 388).

Nitsch also was treated by James V. Ortman, M.D. On April 1, 2008, Nitsch reported that she had no energy and that she had worked only about 18 months in the past 12 years because of recurrent bronchitis/sinusitis and CFS. (Id. at 339). On September 10, 2008, Ortman noted that Nitsch remained disabled by her physical complaints. Her main problem was CFS, which required her to plan simple daily activities, such as showering. (Id.). Ortman noted that Nitsch had been diagnosed in the past with cyclothymia and ADD and that she had a family history of depression. Ortman believed that Nitsch could benefit from cognitive behavior therapy and a graded exercise program, but she was concerned as to whether her health insurance would cover the therapy. Ortman wrote, "She is also considering another try at disability which I would have to support in view of the overall clinical condition." (Id. at 338).

Nitsch reported on March 2, 2010, that she continued to lack energy and had been homebound during the winter. (Id. at 506). She said she had no energy to exercise. Ortman stated, "I believe she deserves disability with all of these problems, particularly the narcolepsy and chronic fatigue syndrome." (Id.). Ortman stated in May 2010 that Nitsch fulfilled the criteria for a diagnosis of CFS. (Id. at 590).

Nitsch was also treated for migraine headaches. In August 2008, she was seen by Robert R. Sundell, M.D., (Id. at 305) when she reported that the medications she had been prescribed four years earlier were no longer helping. Nitsch stated that she had up to eight migraines each month, which interfered with her functioning. Her neurological examination was normal, and she was prescribed Topamax. (Id.).

Nitsch took part in therapy with Rosanna Jones-Thurman, Ph.D., between October 2008 and September 2012. Handwritten therapy progress notes from Jones-Thurman reflect that when therapy started, Nitsch reported that she lived in the basement of her parents' home, that the situation was fairly unbearable, that her mother made her feel guilty, and that her mother blamed Nitsch for everyone's unhappiness. (Id. at 568). Nitsch demonstrated a great deal of anger toward her self and others and misdirected it. Jones-Thurman commented that Nitsch cried, threw things, yelled at others, and did not accept responsibility. (Id.). Jones-Thurman noted that Nitsch had problems with self-esteem and a lot of issues related to emotional loss, grief, and abandonment. (Id. at 567). After Nitsch reported in November 2008 that conditions at home continued to be bad, Jones-Thurman stated that Nitsch needed to apply for disability to try to get out of the home. (Id. at 566).

Nitsch also reported on difficulties she had with her financial situation. In September 2009, she received notice that her funds were being garnished. (Id. at 551). She had stopped paying bills rather than file for bankruptcy. She was upset with having to be dependent on her mother. (Id.). Later the same month, she stated that she was going to talk to her brother's bankruptcy attorney. (Id. at 550). In October 2009, Nitsch reported that she had avoided or ignored a stack of bills and other papers that included collection notices because her mother had not paid Nitsch's bills. (Id. at 548). In November 2009, Nitsch reported that she felt overwhelmed by paperwork and things she needed to do. She was not feeling supported by her mother who wanted Nitsch to be less financially dependent. (Id. at 546). In December 2009, Nitsch continued to feel financial pressure from her parents, but her mother gave her some cash for Christmas shopping. (Id. at 545).

In February 2010, Nitsch reported that she had received a notice from a credit card company and was hoping she could keep her car. She had been arguing with her mother a lot about finances because her mother wanted Nitsch to file for bankruptcy or sell some stock. (Id. at 541).

Throughout therapy, Nitsch related her activities and social functioning. She reported that she babysat her niece on a regular basis, and took part in activities with her, including going to her soccer and softball games, walking her to and from swim lessons, watching DVDs, baking cookies, going to the zoo, and going to see the "Nutcracker." (Id. at 567, 563, 555, 554, 545). She also cared for her niece for several days at a time and hosted a sleepover for her. (Id. at 628). In the summer of 2009, Nitsch acted as a nanny for her niece. (Id. at 553).

At various times during therapy, Nitsch reported that she swam a few laps at the pool, and went to friends' homes, to visit friends in Minneapolis, to family get-togethers, out to lunch with visiting family, to the farmer's market, to a Nebraska football game, to a movie, to church, and to Morrill Hall in Lincoln with a neighbor. (Id. at 562, 554, 543, 537, 601, 630, 627, 625). In August 2009, Nitsch reported she had gone to Minneapolis to visit friends, but she had some depression after she returned because she missed Minnesota and her friends and dwelled on the life she could have had. (Id. at 552). In March 2011, Nitsch reported that she drove her mother to a funeral in North Platte. (Id. at 627). She said it went pretty well, but they both experienced anxiety from the weather. (Id.).

For Easter 2011, Nitsch reported that she cleaned the basement area where she lived for an Easter gathering, but she was so exhausted from the preparation that she did not go upstairs to visit with family. Instead, she sat alone in the basement and no one came down to visit her. (Id. at 625). In May 2011, Nitsch reported that she spent three hours at a spa where she had a makeover. (Id. at 669). She went to Lake Okoboji for five days in October 2012. (Id. at 710).

Jones-Thurman noted that Nitsch appeared to have hoarding issues. She reported working to clean out a storage unit and closets, but she had difficulty parting with things. (Id. at 540). Nitsch later told Jones-Thurman that she had been selling items on eBay and was spending time looking into making jewelry to sell on the internet. (Id. at 600). She had a garage sale and at one time was working on creating an Etsy website. (Id. at 667).

In May 2010, Nitsch reported that she was upset by her mother's statements that Nitsch was seeing Jones-Thurman in order to get disability and that her mother believed that it was Jones-Thurman's responsibility to qualify Nitsch for disability. (Id. at 537).

Jones-Thurman completed three psychological evaluations of Nitsch. In October 2008, Jones-Thurman noted that Nitsch reported she had been diagnosed in Texas with CFS, but doctors in Omaha had told her they were not sure she had the illness. (Id. at 571). Jones-Thurman noted that Nitsch looked depressed and apathetic. She reported that she would like to be more social, but she thought that would involve spending money to eat out. She had depression and anxiety from a lack of money. (Id. at 572). Nitsch reported that she had problems with attention, concentration, and distraction. (Id.). Jones-Thurman stated that Nitsch appeared to be of average intellectual ability, but was demonstrating a mood disturbance. Her affect was appropriate to her mood, which was flat and depressed. (Id. at 573). Jones-Thurman encouraged Nitsch to reapply for disability. (Id. at 574). Nitsch had compulsive issues with buying items and running up debt, but it appeared some of it was related to socializing and wanting to live a lifestyle that she was unable to because of her lack of income. She did not meet the criteria for cyclothymia. (Id.). Nitsch most likely had dysthymic disorder and a possible depressive disorder, NOS, as well as adjustment issues from her situation, and ADHD, inattentive type. Jones-Thurman stated that it did not appear that Nitsch could hold a full-time job and have reasonable employment. She was very slow in moving and quite obese. Her irritability, depression, and anxiety would interfere with not only work-related duties, but in getting along with others. (Id.).

Jones-Thurman stated that Nitsch had dysthymic disorder; ADHD, inattentive type, moderate; and adjustment disorder, with depression and anxiety; and personality disorder, NOS (not otherwise specified). Her physical conditions included obesity, CFS, narcolepsy, sinusitis, allergies, asthma, migraines, and repetitive motion injury. Her current GAF was 49.[2] (Id. at 574).

Jones-Thurman submitted a psychological report after evaluating Nitsch on December 7, 2009. (Id. at 429). Jones-Thurman stated that Nitsch's ability to receive, organize, analyze, remember, and express information appropriately in a conversational setting was within the average range. Her mood and affect were flat and depressed. Her attention and concentration were intact as measured by her ability to respond to questions. She was able to demonstrate ability to do abstract reasoning by solving similarities and differences. (Id. at 433). Nitsch stated that she had no restrictions on activities of daily living due to mental health problems, but she was not very active because of physical problems. (Id.). Although she was able to sustain attention and concentration for task completion if it was short and simple, she also got distracted and procrastinated. (Id. at 434). Jones-Thurman's diagnostic impressions were generally the same as the 2008 evaluation. (Id. at 435). Her current GAF was 50. (Id.).

Jones-Thurman stated that Nitsch's prognosis was guarded. She had significant anxiety and depression and felt that her situation was fairly hopeless and helpless. She reported some fears and phobias and appeared to be somewhat obsessive-compulsive in nature, although it was not clear she met the criteria for actual diagnoses in those areas. It was recommended that she continue with therapy and medications. Jones-Thurman stated that although Nitsch had the mathematical ability to manage funds on her own behalf, she had compulsive spending problems which had gotten her into debt. She had outstanding student loans and thousands of dollars of credit card debt. (Id. at 435). Despite her mother putting her on a monthly allowance, she continued to overspend on a regular basis. (Id. at 436). Jones-Thurman indicated that Nitsch had no restriction in activities of daily living or in maintaining social functioning, but she had difficulty in adapting to changes in her environment. (Id. at 437).

Jones-Thurman completed a medical statement of ability to do work-related activities on December 2, 2009, when she had been providing therapy for more than one year. (Id. at 407-08). She stated that Nitsch had good ability to follow work rules, relate to co-workers, deal with the public, use judgment, function independently, understand, remember and carry out simple job instructions, maintain personal appearance, and behave in an emotionally stable manner. Nitsch had a fair ability to interact with supervisors, deal with work stresses, maintain attention and concentration, understand, remember and carry complex or detailed instructions, and relate predictably in social situations. (Id. at 407). Jones-Thurman stated that Nitsch had average intelligence and had spent more than one year "with the goal of applying for disability." (Id. at 408).

In June 2010, Jones-Thurman completed a psychological evaluation form for affective disorders. (Id. at 582-89). Nitsch exhibited the following symptoms related to a depressive syndrome: appetite disturbance, sleep disturbance, psychomotor agitation, decreased energy, feelings of guilt and/or worthlessness, and difficulty concentrating or thinking. She had exhibited the following symptoms related to a manic syndrome: hyperactivity, inflated self-esteem, and easy distractibility. (Id. at 584). She had not demonstrated any symptoms of bipolar syndrome. Jones-Thurman noted that Nitsch had exhibited marked difficulties in paying bills, planning daily activities, cooking, cleaning, and initiating and participating in activities independent of supervision and direction. (Id. at 585). She showed moderate impairment in grooming and hygiene. She could not plan or organize and she could not manage money. It took her more than one year to complete her disability application. (Id.).

Jones-Thurman stated that Nitsch had exhibited marked difficulties in the following areas of social functioning: getting along with family and friends, exhibiting social maturity, responding to supervision and to those in authority, and holding a job. (Id. at 586). Jones-Thurman stated that Nitsch was somewhat immature, easily annoyed and irritated, and probably did not respond well to criticism or any form of constructive feedback. Nitsch had a slow pace, had obsessive compulsive disorder to such a degree that she could not get things done, had no persistence, and had poor attention and concentration. (Id.). She exhibited marked impairment in the ability to complete tasks in a timely manner, to repeat sequences of actions to achieve a goal, to assume increased mental demands associated with competitive work, and to sustain tasks without an unreasonable number of breaks or rest periods and without undue interruptions or distractions. (Id. at 587).

Jones-Thurman stated that Nitsch had displayed withdrawal from situations, exacerbation of signs and symptoms of illness, deterioration from level of functioning, decompensation, poor attendance, inability to cope with schedules and to adapt to changing demands, and poor decision-making. (Id.). Jones-Thurman stated that Nitsch had a medically documented history of a chronic affective disorder of at least two years' duration that had caused more than a minimal limitation of ability to do basic work activities. (Id. at 588). Jones-Thurman stated that Nitsch's mental condition would remain at the severity level indefinitely because Nitsch has done medical management and therapy since high school. (Id. at 589).

In November 16, 2010, Jones-Thurman stated that Nitsch's condition remained the same since her June 2010 opinion. (Id. at 606). Ortman also stated that Nitsch's condition remained the same. (Id. at 609). Both Ortman and Jones-Thurman stated that her condition remained the ...


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