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Burt v. Colvin

United States District Court, D. Nebraska

June 11, 2014

DARYL L. BURT, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.


LAURIE SMITH CAMP, Chief District Judge.

Daryl L. Burt filed a complaint on August 26, 2013, against Carolyn W. Colvin, the Acting Commissioner of the Social Security Administration. (ECF No. 1.) Burt seeks a review of the Commissioner's decision to deny his application for disability insurance benefits under Title II of the Social Security Act (the Act), 42 U.S.C. §§ 401 et seq., and supplemental security income (SSI) benefits under Title XVI of the Act, 42 U.S.C. §§ 1381 et seq. The defendant has responded to Burt's complaint by filing an answer and a transcript of the administrative record. (See ECF Nos. 10, 11). In addition, pursuant to the order of Senior Judge Warren K. Urbom, dated November 13, 2013 (ECF No. 13), each of the parties has submitted briefs in support of his or her position. (See generally Pl.'s Br., ECF No. 15; Def.'s Br., ECF No. 20, Pl.'s Reply Br., ECF No. 21). After carefully reviewing these materials, the court finds that the Commissioner's decision must be affirmed.


Burt, who was born on November 22, 1958 (Tr. 245), filed applications for disability insurance benefits and for SSI benefits under Title XVI on June 16, 2010. (Tr. 245-49). He alleged an onset date of March 11, 2010. (Tr. 245). Burt's SSI application was denied on May 27, 2010, because he had too much unearned income from unemployment insurance to be eligible. (Tr. 91, 185-92). He did not appeal from that denial. (Tr. 91). His Title II claim was denied initially (tr. 114-18) and on reconsideration on January 26, 2011. (Tr. 119-26). Burt requested a hearing before an administrative law judge (ALJ) on March 2, 2011. (Tr. 128). On July 13, 2011, Burt filed another Title XVI application for SSI. (280-85). A hearing was held on October 17, 2011. (Tr. 151).

On November 9, 2011, the ALJ found that Burt had not been under a disability from March 11, 2010, through the date of the decision. (Tr. 91-103). Burt sought review by the Appeals Council. (Tr. 194). On January 24, 2012, the Appeals Council remanded the case to an ALJ. (Tr. 109-11). The Appeals Council identified three issues for the ALJ to address: 1) the assessed residual functional capacity (RFC)[1] did not include any corresponding social limitations even though the ALJ found that Burt had moderate limitations in maintaining social functioning; 2) the decision did not include a narrative discussion describing how the evidence supported the RFC assessment; and 3) the decision merely summarized the medical evidence of record but did not evaluate and assess the weight given to medical opinions of record. (Tr. 110). The Appeals Council directed the ALJ to give further consideration to Burt's maximum RFC during the entire period at issue and to provide rationale with specific references to the evidence in support of assessed limitations, including an evaluation of the treating and examining and non-examining source opinions and an explanation of the weight given to the opinion evidence. If appropriate, the ALJ could request the treating and examining source to provide additional evidence and/or further clarification. (Tr. 111). The Appeals Council also directed the ALJ to obtain supplemental evidence from a vocational expert (VE) to clarify the effect of the assessed limitations on Burt's occupational base. The ALJ was also directed to identify and resolve any conflicts between the occupational evidence provided by the VE and information in the Dictionary of Occupational Titles (DOT). (Tr. 111). A hearing upon remand was held on April 26, 2012. (Tr. 70-83). On May 14, 2012, the ALJ issued a decision, again finding that Burt was not disabled. (Tr. 9-27).

An ALJ is required to follow a five-step sequential analysis to determine whether a claimant is disabled. See 20 C.F.R. § 404.1520(a). The ALJ must continue the analysis until the claimant is found to be "not disabled" at steps one, two, four or five, or is found to be "disabled" at step three or step five. See id. Step one requires the ALJ to determine whether the claimant is currently engaged in substantial gainful activity. See 20 C.F.R. § 404.1520(a)(4)(i), (b). The ALJ found that Burt had not been engaged in substantial gainful activity since March 11, 2010, the alleged onset date. (Tr. 14).

Step two requires the ALJ to determine whether the claimant has a "severe impairment." 20 C.F.R. § 404.1520(c). A "severe impairment" is an impairment or combination of impairments that significantly limits the claimant's ability to do "basic work activities" and satisfies the "duration requirement." See 20 C.F.R. §§ 404.1520(a)(4)(ii), (c), 404.1509 ("Unless your impairment is expected to result in death, it must have lasted or must be expected to last for a continuous period of at least 12 months."). Basic work activities include "[p]hysical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling"; "[c]apacities for seeing, hearing, and speaking"; "[u]nderstanding, carrying out, and remembering simple instructions"; "[u]se of judgment"; "[r]esponding appropriately to supervision, co-workers and usual work situations"; and "[d]ealing with changes in a routine work setting." 20 C.F.R. § 404.1521(b). If the claimant cannot prove such an impairment, the ALJ will find that the claimant is not disabled. See 20 C.F.R. § 404.1520(a)(4)(ii), (c). The ALJ found that Burt had the following severe impairments: depression not otherwise specified, anxiety disorder, cannabis dependence, degenerative disc disease of the lumbar spine, obesity, and fibromyalgia. (Tr. 14).

Step three requires the ALJ to compare the claimant's impairment or impairments to a list of impairments. See 20 C.F.R. § 404.1520(a)(4)(iii), (d); see also 20 C.F.R. Part 404, Subpart P, App'x 1 (20 C.F.R. §§ 416.920(d), 416.925 and 416.926). If the claimant has an impairment "that meets or equals one of [the] listings, " the analysis ends and the claimant is found to be "disabled." See 20 C.F.R. § 404.1520(a)(4)(iii), (d). If a claimant does not suffer from a listed impairment or its equivalent, then the analysis proceeds to steps four and five. See 20 C.F.R. § 404.1520(a). The ALJ found that Burt did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments. (Tr. 15).

Step four requires the ALJ to consider the claimant's RFC to determine whether the impairment or impairments prevent the claimant from engaging in "past relevant work." See 20 C.F.R. § 404.1520(a)(4)(iv), (e), (f). If the claimant is able to perform any past relevant work, the ALJ will find that the claimant is not disabled. See 20 C.F.R. § 404.1520(a)(4)(iv), (f). The ALJ found that Burt was unable to perform any past relevant work. (Tr. 25).

At step five, the ALJ must determine whether the claimant is able to do any other work considering his RFC, age, education, and work experience. If the claimant is able to do other work, he is not disabled. The ALJ found that Burt had the RFC to perform the full range of medium exertional work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), was able to understand, remember, and carry out four- to five-step instructions, is able to tolerate frequent contact with co-workers and supervisors, and was able to tolerate occasional contact with the public. (Tr. 18). The ALJ found that Burt had acquired work skills from past relevant work that were transferable to other occupations with jobs existing in significant numbers in the national economy. (Tr. 26). Therefore, Burt had not been under a disability from March 11, 2010, through the date of the decision. (Tr. 27). The Appeals Council denied further review on July 2, 2013. (Tr. 1-6). Thus, the ALJ's decision stands as the final decision of the Commissioner, and it is from this decision that Burt seeks judicial review.


A. Medical Evidence

Burt alleged he was disabled due to interstitial cystitis, fibromyalgia, chronic sinusitis, carpal tunnel in both wrists, pain and numbness in arms, arthritis, deviated septum, allergies, back pain, loss of mobility, scar tissue on penis, spermatocele on left testicle, bladder ulceration, bipolar disorder, high cholesterol, and pain in knees, hips, ankles, and joints. (Tr. 318). In his brief, he focuses on fibromyalgia, carpal tunnel syndrome, and psychiatric disorders. (Pl.'s Br. at 3-4).

The medical records date to January 1999, when Burt began taking Daypro for back pain caused by fibromyalgia. (Tr. 454). He reported marked improvement in a few weeks, although he still had pain. (Tr. 455). His blood work was negative for rheumatoid arthritis. (Tr. 455). K.A. Glab, M.D., recommended that Burt begin physical therapy. Burt complained of depression, and Dr. Glab gave him samples of Paxil. (Tr. 455). In February 1999, Burt reported that Daypro and physical therapy had helped. (Tr. 455).

At a pre-employment physical in November 1999, Burt complained of numbness and tingling in his wrists. (Tr. 446). He was given a splint to wear on his left wrist during the day and nerve conduction studies were planned to determine if he had carpal tunnel syndrome. (Tr. 446).

Burt indicated in his brief that he did not need any specialized treatment for five years. (Pl.'s Br. at 6.) In November 2004, Burt told Trenette Larson, M.D., that he thought he had fibromyalgia. (Tr. 415). He reported daily pain for seven to eight years. He stated that the pain was in the upper and lower back, ankles, shoulders, lateral thighs, lower legs, and left flank. He described the pain as searing and needling. He also reported muscle pain, fatigue, sleep maintenance insomnia, chronic sinusitis, postnasal drainage, frontal and facial headaches, and arthralgias of his ankles. (Tr. 415). Dr. Larson noted that Burt had 16 out of 18 tender points present and assessed that Burt had "Fibromyalgia by ACR [American College of Rheumatology] criteria with associated fatigue, sleep disturbance and headaches." (Tr. 415). However, his fatigue was not severe enough to qualify as chronic fatigue syndrome. Dr. Larson prescribed Tramadol, which was "considered the drug of choice for mild to moderate fibromyalgia as it is a serotonin and norepinephrine uptake inhibitor and has pain relieving properties as well as antidepressant and stimulant properties.". (Tr. 415).

When Burt returned for a follow-up visit in January 2005, he reported that his pain was better when he took Ultram. Dr. Larson noted that Burt was able to move around better, and he reported that he worked eight hours a day and was able to get his duties done more quickly. (Tr. 414). In April 2005, Dr. Larson noted that Burt's fibromyalgia was well-controlled and his sleep was improved. The treatment notes indicate that nerve conduction studies showed carpal tunnel syndrome in Burt's left wrist, but it was not symptomatic enough to require surgery. (Tr. 413, 449-450).

In July 2005, x-rays showed degenerative changes of Burt's lumbosacral spine without evidence of acute fracture or dislocation. (Tr. 428). In January 2006, Burt reported to Dr. Larson that he had a pins-and-needles sensation in his arms and lower legs when he woke up, but it went away in a few minutes after he started moving. (Tr. 411). Dr. Larson noted that Burt's fibromyalgia was worse than it had been in the summer months, but it was very well-controlled with lifestyle changes and medications. (Tr. 411).

In December 2006, Dr. Larson noted that Burt reported Lyrica had helped his sharp twangs of pain. (Tr. 409). He said his energy level and sleep were better, but it could take an hour after waking up to become fully functional. (Tr. 409). Burt stated that he no longer took Ultram. (Tr. 409).

Richard Jay, D.O., began treating Burt in April 2008. (Tr. 508). Burt reported that he no longer took Tramadol. (Tr. 508). Dr. Jay diagnosed Burt with otitis media, osteroarthritis, and fibromyalgia. Dr. Jay educated Burt about his medications and condition. (Tr. 509). In October 2008, Dr. Jay noted that Burt's fibromyalgia was controlled with medication. (Tr. 510).

In January 2009, Burt consulted with Oscar Sanchez, M.D., for pain control. (Tr. 494). Dr. Sanchez reported that Burt was independent in his daily living activities and gait and used no assistive devices. Burt claimed he was not able to take a daily shower due to significant drowsiness and fatigue. (Tr. 494). Dr. Sanchez assessed Burt as having chronic pain syndrome with fibromyalgia syndrome which was fairly controlled, pain disorder with other psychological factors, fatigue associated with chronic pain and hypersomnolence, history of carpal tunnel syndrome, and rule out mood disorders.[2] (Tr. 495). Dr. Sanchez stated that it was difficult to keep Burt focused during the examination. Burt did not want to try any narcotics and declined physical therapy. (Tr. 495-96). Dr. Sanchez recommended no changes in medications, but he recommended a psychiatric evaluation because he believed Burt had an underlying mood disorder which needed to be treated. (Tr. 496).

In March 2010, Dr. Jay noted that Burt's fibromyalgia, osteoarthritis, and carpal tunnel syndrome were all unchanged. (Tr. 472, 520). He had a normal gait, balance, and motor. (Tr. 472). Burt was given refills for Cymbalta, Lipitor, Lyrica, Meloxicam, and Tramadol. (Tr. 472).

In October 2010, Kashif A. Mufti, M.D., a rheumatologist, examined Burt and determined that his presentation of diffuse arthralgias and myalgias with trouble sleeping at night and multiple tender points was consistent with fibromyalgia. His workup had been negative for autoimmune disease and/or inflammatory arthropathy. (Tr. 489). Dr. Mufti maximized Burt's Lyrica and Cymbalta and gave him a trial of amitriptyline. He was also given reading material about fibromyalgia and water aerobics. (Tr. 489). At about the same time, Burt was diagnosed with benign hypertension, which was controlled with medication. (Tr. 522).

In June 2011, Burt had a cystoscopy and urethral dilation and urethral catheter placement. (Tr. 575). He was instructed to self catheterize once each day to keep the strictured area open, but by July 2011 he told his primary care physician that he had stopped the catheterization because he did not understand what he was supposed to do. (Tr. 538). James Plate, M.D., stated that he spent 30 minutes trying to explain the reason for the catheterization, but Burt did not believe he could do the procedure. The urology clinic had also spent time trying to teach him. The urology clinic was going to send instructions to Dr. Plate's office, and they would offer further instructions. (Tr. 539).

On August 11, 2010, E. Dean Schroeder, Ed.D., conducted a consultative psychological examination for Nebraska Disability Determination Services. (Tr. 480-86). Schroeder reported that Burt was prompt for the appointment and able to drive to the examination site without difficulty. He had not bathed recently and had not shaved in several days. He was wearing a brace on each wrist and complained throughout the evaluation of discomfort from fibromyalgia. He also complained of discomfort from arthritis and from a digestive problem. He was, however, able to walk from the waiting area to the examination room and back without difficulty, indicating that his physical complaints apparently had not affected his mobility. (Tr. 482). His general orientation and understanding of the purpose of the interview was intact. His initial attitude was one of openness and friendliness. He appeared to enjoy the interaction with the interviewer. (Tr. 482). Burt was friendly and talkative and fully engaged in the evaluation process. He did not appear to be suffering from any increased levels of stress or anxiety, but his mood appeared to be lowered. (Tr. 483).

Burt reported that he had not been employed since March 2010, when he was fired after working in food service for nine years at a local nursing home. (Tr. 483). He thought his job was terminated because he was one of the longer-term employees and his salary was somewhat higher than other employees. (Tr. 483).

Burt reported to Schroeder that he had been afflicted with fibromyalgia since he was in his early 20s. (Tr. 484). Burt reported that he experienced daily discomfort from his fibromyalgia, mostly in his core. He also complained of some difficulty with arthritis and believed that he may suffer from carpal tunnel syndrome. His sister, who is a mental health professional, and a physician had told him that he may suffer from bipolar disorder. Schroeder noted that Burt did not display any symptoms of manic behavior, nor did he admit to periods of increased activity, lack of sleep, lack of concentration and focus, or other symptoms that would be typical of a manic state. As a result, Schroeder stated that it appeared that Burt was more likely suffering from moderate levels of depression. (Tr. 484). Burt stated that his mood was significantly lowered when his fibromyalgia and arthritis discomfort increased. He also noted that his mood was related to some of the social contacts he had within the community, which Schroeder stated would again indicate the presence of depression rather than bipolar disorder. (Tr. 484).

Schroeder stated that Burt's ability to receive, organize, analyze, remember, and express information appropriately in a conversational setting was in the average to lowaverage range. He had some difficulty staying on track throughout the interview, and on occasion his verbal production needed to be redirected to the question at hand. (Tr. 485). His affect was somewhat restricted, but he was able to display an appropriate range of emotional responses. There was no evidence of any special preoccupations or apparent disturbances in perception. Burt did not display any observable signs of tension, anxiety, or psychomotor disturbance. His judgment and insight were likely in the average to low-average range. He had been able to produce adaptive behavioral skills that were quite effective throughout his lifetime. (Tr. 485).

Schroeder noted that Burt did not report any restrictions of activities of daily living as they related to his mood disorder, but his physical discomfort was the most limiting aspect of his life at the time. (Tr. 486). Schroeder stated that Burt was fully capable of sustaining the concentration and attention needed for task completion. He was capable of understanding, remembering, and carrying out short and simple instructions under ordinary supervision. (Tr. 486). The diagnostic impression was mood disorder due to physical discomfort with depressive features. Schroeder indicated that Burt's current GAF[3] was 65 and in the past year, it had been 75.[4] (Tr. 486).

Schroeder stated that Burt had no restriction in activities of daily living or difficulties in maintaining social functioning. (Tr. 480). Schroeder noted that Burt's depression might worsen when his physical discomfort increased. However, he had the ability to sustain concentration and attention needed for task completion, to understand and remember short and simple instructions under ordinary supervision, to relate appropriately to coworkers and supervisors, and to adapt to changes in the environment. Burt was capable of handling his own funds. (Tr. 480).

Burt first saw a psychiatrist on October 26, 2010. (Tr. 491-94). William J. Michael, M.D., noted that Burt showed high levels of anxiety during the initial interview, as well as a significant number of obsessive compulsive components. (Tr. 491). Burt did not report any auditory or visual hallucinations or delusions. (Tr. 491). Burt had never before seen a mental health professional, but he had taken Paxil, which he said made him feel numb. (Tr. 492). Dr. Michael stated that Burt was hyperverbal through most of the interview but he was fairly redirectable. His mood and affect were moderately anxious. Burt was alert to person, place and time. Dr. Michael assessed Burt as having provisional obsessive compulsive disorder (OCD) with a questionable paranoia component, anxiety, probable agoraphobia without panic attacks, rule ...

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