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Mendenhall v. Colvin

United States District Court, D. Nebraska

March 12, 2015

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


THOMAS D. THALKEN, Magistrate Judge.

This is an action for judicial review of a final decision of the Commissioner of the Social Security Administration (the Commissioner).[1] Lori Ann Mendenhall (Mendenhall) appeals the Commissioner's decision denying Mendenhall's application for disability benefits under Title II of the Social Security Act (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.

Mendenhall filed an application for disability benefits and SSI on July 5, 2011, and on September 30, 2011, alleging her disability of back problems, memory problems, and the inability to lift things began July 1, 1997 (AR. 131-144, 210). The Social Security Administration (SSA) denied benefits initially and again upon reconsideration (AR. 55, 56, 58, 59, 60-64, 68-72, 73-75). Mendenhall appealed the denials to an administrative law judge (ALJ) who held an administrative hearing on May 1, 2013 (AR. 33-53). On May 29, 2013, the ALJ determined Mendenhall was not disabled within the meaning of the Act (AR. 13-32). The Appeals Council denied Mendenhall's request for review on March 20, 2014 (AR. 1-7). Mendenhall now seeks judicial review of the ALJ's determination as it represents the final decision of the Commissioner. See 42 U.S.C. § 405(g).

Mendenhall filed a brief (Filing No. 24) in support of this administrative appeal. The Commissioner filed the administrative record (AR.) (Filing No. 11) and a brief (Filing No. 28) in opposition of Mendenhall's appeal for benefits. Mendenhall filed a brief (Filing No. 29)[2] in opposition to the Commissioner's brief. Mendenhall appeals the Commissioner's decision, asking the decision be reversed and benefits awarded because: (1) the ALJ improperly evaluated her symptoms and limitations when the ALJ established Mendenhall's physical residual functional capacity (RFC); and (2) the ALJ failed to include all of Mendenhall's impairments in the ALJ's hypothetical to the vocational examiner (VE). See Filing No. 24 - Brief p. 6-10.


A. Medical History

Mendenhall previously worked as a secretary and as a customer aide (AR. 18, 25, 201, 211). Mendenhall alleged she became disabled on July 1, 1997 (AR. 131-144). At the time of her application for benefits, Mendenhall was forty-one years old and forty-four years old when the ALJ rendered his decision (AR. 27, 138).

Mendenhall first sought treatment with Donn Turner, M.D. (Dr. Turner), at Front Range Center for Brain and Spine Surgery, P.C. (Front Range Center) for low back pain on August 18, 2003 (AR. 282-284). Dr. Turner noted Mendenhall had tenderness over the lumbrosacral junction, but Mendenhall's gait and station were normal and her sensory exam was normal (AR. 283). Mendenhall underwent a lumbar spine magnetic resonance imaging (MRI), which showed a degenerative bulging disc (AR. 283-284). Dr. Turner recommended Mendenhall undergo an L5-S1 fusion (AR. 283-284).

On October 8, 2003, Mendenhall visited Dr. Turner at Poudre Valley Hospital, complaining she could barely function due to her back pain (AR. 329-330). Dr. Turner noted Mendenhall had trouble going from a sitting to standing position (AR. 329). Mendenhall's gait and station were normal, her motor strength testing was normal, and her sensory exam was normal (AR. 330). Two days later, Mendenhall underwent an L5-S1 lumbar fusion for her back (AR. 292, 326-328). Post-operation, Mendenhall stated her pain was still severe, but her discharge status was "improved" (AR. 292).

On November 10, 2003, Mendenhall followed up with Dr. Turner, and he noted she was doing pretty well, but she was still quite sore from the operation (AR. 285). Dr. Turner started Mendenhall on physical therapy and wrote Mendenhall was unable to be released for employment (AR. 285). Mendenhall began physical therapy the same day at Front Range Center and the report stated Mendenhall could return to transitional work in two months (AR. 294). Once Mendenhall was able to return to work, she was limited to working four to eight hours and restricted to sitting in one-hour durations (AR. 294).

On November 17, 2003, Mendenhall attended physical therapy at Mid-Nebraska Physical Therapy and Sports Center (AR. 295). Mendenhall reported she was doing fairly well, but on examination her lumbar paraspinals were tight with tenderness, and she had decreased lumbar lordosis (AR. 295). Mendenhall reported during the examination her lower extremity symptoms were no longer present (AR. 295).

Mendenhall had an x-ray performed on her lumbar spine on December 31, 2003, which revealed mild degenerative changes at several levels, but normal vertebral alignment with no fracture or dislocation (AR. 297). Mendenhall attended another physical therapy session on February 28, 2004, at Mid-Nebraska Physical Therapy and Sports Center (AR. 302). Mendenhall continued to work, but reported soreness with her work duties (AR. 302).

On March 23, 2004, Mendenhall returned to Dr. Turner and complained of back and radicular pain in her left lower extremity, but the pain in her right leg was completely gone (AR. 287). Mendenhall also said her pain was not getting worse over time (AR. 287). Dr. Turner told Mendenhall to continue taking Neurontin, but warned her to only take narcotics as needed (AR. 287).

An April 15, 2004, x-ray of Mendenhall's lumbar spine showed mild degenerative changes, but normal vertebral alignment and no evidence of hardware complication or loosening (AR. 303). On April 19, 2004, Mendenhall visited Dr. Turner and he noted her spine film looked fine and showed good fusion at L5-S1 with no movement in flexion versus extension, but she still had some back pain (AR. 288). On December 17, 2004, Dr. Turner noted Mendenhall's lumbar spine MRI showed some degenerative disc disease at L3-L4, possible trace protrusion at L4-L5, and a wide laminectomy at L4-L5 and L5-S1 (AR. 289). Dr. Turner would not recommend surgical treatment for Mendenhall's leg and back pain (AR. 289).

On March 2, 2005, Mendenhall visited George Girardi, M.D. (Dr. Girardi), at Front Range Center (AR. 318). Mendenhall's sensation was intact and her gait was normal, but her lower left extremity was notably weaker than her lower right extremity (AR. 318). Dr. Girardi suggested a spinal cord stimulator for relief from back and leg pain and prescribed Percocet and Avinza for pain in the meantime (AR. 318). On March 30, 2005, Mendenhall had a trial spinal cord stimulator inserted in her spine (AR. 323).

On September 30, 2005, Mendenhall visited Sanjay Jatana, M.D. (Dr. Jatana), an orthopedic surgeon, at Denver Spine Center (AR. 346). Mendenhall stated her pain had progressively worsened since her original injury occurred (AR. 346). On exam, Mendenhall had no muscle spasms, her hip rotation was non-painful, and she had a slightly diminished sensation in the left L4 and L5 dermatomes (AR. 346-347). Dr. Jatana recommended nerve root blocks and an L5-S1 hardware block if the nerve root blocks were nonconcordant (AR. 346-347).

On October 13, 2005, Mendenhall received spinal injections and had a hardware block inserted at L5-S1 (AR. 354-355). After the procedures, Mendenhall said her back pain dropped from a two to zero on a ten-point scale (AR. 355). Mendenhall also said her buttock and thigh pain dropped from a seven to a two on a ten-point scale (AR. 355). On October 14, 2005, Mendenhall saw Dr. Jatana and reported temporary improvement in her legs and low back from the hardware block and injections, but she still had low back and thigh pain ranging from five to ten on a ten-point scale (AR. 345). Dr. Jatana suggested removing the hardware to see if it helped Mendenhall's symptoms (AR. 345).

On December 5, 2005, Mendenhall followed up with Dr. Jatana after her lumbar hardware removal procedure (AR. 343). Mendenhall said her legs were better and her low back pain was less intense (AR. 343). Dr. Jatana recommended Mendenhall start a physical therapy regimen and recommended Mendenhall return to work part-time the following week and then consider starting full-time (AR. 343). On January 27, 2006, Mendenhall returned to Dr. Jatana and he noted Mendenhall appeared to be making progress, but she still had pain near the sacrum (AR. 341). At the time, Mendenhall worked part-time with restrictions (AR. 350).

On April 14, 2006, Mendenhall saw Teresa Corley, P.A.-C (Corley), a physician's assistant, at Denver Spine Center (AR. 338-339). Mendenhall was working full-time with no restrictions (AR. 349). Mendenhall said she completed physical therapy and had been taking walks and stretching (AR. 338). Corley noted narcotic dependence and stated Mendenhall should be completely off of medications by May 16, 2006 (AR. 338-339). On July 13, 2006, Mendenhall reported she was working full-time with no restrictions (AR. 348).

Nearly three years later, on April 8, 2009, Mendenhall went to Midlands Family Medicine to have her back reexamined (AR. 414). Gary L. Conell, M.D. (Dr. Conell), a family practitioner, noted spinal injections helped Mendenhall for a short time (AR. 414). Dr. Conell prescribed medication for immediate pain but told Mendenhall he would not give her any more (AR. 414). On April 17, 2009, Mendenhall underwent a lumbar spine MRI, which revealed no recurrent herniation, significant stenosis, or subluxation at L5-S1 (AR. 429-430). However, the MRI showed moderate stenosis and moderate foraminal narrowing at L3 and L4 (AR. 430).

On May 22, 2009, Mendenhall visited J. Paul Meyer, M.D. (Dr. Meyer), at NPNPG Pain Management (AR. 370-371). With the exception of her back pain, Mendenhall did not have musculoskeletal joint swelling, loss of coordination, or muscle strength weakness (AR. 370). Further, Mendenhall's cervical spine was normal with no muscle spasms and unrestricted flexion, extension, and right and left lateral rotation (AR. 371). Mendenhall's thoracic spine had normal range of motion, muscle strength, tone, and stability (AR. 371). Mendenhall's lumbar spine was normal with mild tenderness and her gait, station, and posture were also normal (AR. 371). Dr. Meyer noted Mendenhall's history was not consistent with radicular pain, and he suggested a left sacroiliac joint injection (AR. 371). Mendenhall received a sacroiliac joint injection on October 12, 2009 (AR. 369). On November 16, 2009, Mendenhall followed up with Dr. Meyer and said she experienced two to three days of relief after the October injection (AR. 366). Mendenhall received another sacroiliac injection the following day, on November 17, 2009 (AR. 367).

Mendenhall visited Midlands Family Medicine at various intervals from September 2010 to August 2011 (AR. 375-398). On September 11, 2010, Dr. Conell wrote Mendenhall had increasing back problems, which he attributed to family problems causing her anxiety and stress (AR. 397). On June 30, 2011, Mendenhall said she wanted to apply for disability because of her back pain, but Dr. Conell wrote he was not sure she would qualify for disability (AR. 379). Dr. Conell changed Mendenhall's pain medications, and Mendenhall did not return until August 5, 2011 (AR. 378-379).

On August 5, 2011, Mendenhall visited David Arthur, P.A.-C (Arthur), a physician's assistant at Midlands Family Medicine, and complained of low back pain and intermittent headaches (AR. 378). Mendenhall specifically visited Arthur that day for a medication check on her depression medication (AR. 378). On September 1, 2011, Arthur noted the drug Prednisone helped Mendenhall's back pain (AR. 451-453). On September 7, 2011, Mendenhall saw Deborah Weaver, M.D. (Dr. Weaver), an emergency medicine doctor, at Great Plains Regional Medical Center (AR. 539-542). Mendenhall complained of depression related to conflict with her ex-spouse (AR. 539).

On September 29, 2011, Mendenhall returned to Midlands Family Medicine (AR. 445). Mendenhall complained of a headache and backache (AR. 445-447). At the time, Arthur noted Mendenhall was using Tramadol frequently for pain (AR. 447). On September 30, 2011, Arthur wrote a "To Whom It May Concern" letter on behalf of Dr. Conell stating Mendenhall suffered a head injury in December 2010 and had intermittent discomfort, lack of concentration, and memory loss since the injury (AR. 444). In the letter Arthur stated the CT scans did not show definitive injury or damage (AR. 444). On November 4, 2011, Dr. Conell wrote he was concerned about Mendenhall's chronic drug seeking behavior, but refilled Mendenhall's Tramadol, and took her off steroids (AR. 528-529).

On December 2, 2011, Mendenhall visited Sowmini Oomman, M.D. (Dr. Oomman), a neurologist, at Neurology Associates of Great Plains, complaining of headaches and displaying depression (AR. 518-521). Mendenhall told Dr. Oomman she wanted to go on disability for back pain (AR. 518). During the examination, Mendenhall refused to move her lower left extremities; however, Dr. Oomman observed Mendenhall crossing her legs during the examination (AR. 518, 521). Dr. Oomman also noted Mendenhall walked without gait difficulty and got on and off the exam table without help (AR. 521).

On December 6, 2011, Lloyd Kimzey Jr., Ph.D. (Dr. Kimzey), a consultative examiner, examined Mendenhall and completed a psychological report (AR. 455-459). Mendenhall reported to Dr. Kimzey she had been working at a call center for just over a year (AR. 456). She thought it was a reasonable job but was not "extremely excited" about it (AR. 456). She said she previously lost her job as a hospital secretary because there were communication problems and because her employer thought she was making too much money (AR. 456). Mendenhall also explained how her back injury originally occurred and how she experienced ongoing, significant pain (AR. 456). Dr. Kimzey noted Mendenhall had some difficulty with mobility and appeared to be in some pain, but was able to sit through the appointment (AR. 457). Although Mendenhall reported limitations due to pain, Dr. Kimzey determined she did not have substantial restrictions in her activities of daily living (ADLs) (AR. 458). Dr. Kimzey determined Mendenhall's attention and concentration were adequate and she was capable of recalling and carrying out basic short and simple instructions under ordinary supervision (AR. 458). Dr. Kimzey diagnosed dysthymic disorder, mood disorder due to chronic back pain with depressive features, anxiety disorder due to chronic back pain with generalized anxiety features, personality disorder, and ongoing back pain and migraines (AR. 458).

On December 7, 2011, Leland Lamberty, M.D. (Dr. Lamberty), a consultative examiner, examined Mendenhall and completed a medical report (AR. 462-466). Dr. Lamberty observed tenderness over Mendenhall's lumbar spine, but found no obvious back or spine deformity (AR. 465). Mendenhall's range of motion in her back and spine was limited in all plains and her upper and lower extremities were normal with excellent range of motion (AR. 465). The lumbar spine x-ray showed very mild scoliosis, some evidence of sacroiliac joint arthritic change, and disk narrowing at the L5-S1 and L3-L4 disk spaces (AR. 467). The left hip x-ray showed mild degenerative change (AR. 465). Dr. Lamberty determined Mendenhall had chronic low back ...

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