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Lipker v. Colvin

United States District Court, D. Nebraska

May 18, 2015

LORI ANN LIPKER, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.

MEMORANDUM OPINION

LYLE E. STROM, Senior District Judge.

This matter is before the Court on the appeal of plaintiff, Lori Lipker ("Lipker"), of a final decision by the Acting Commissioner of the Social Security Administration ("SSA") denying Lipker's application for disability benefits. The Court finds that the Administrative Law Judge ("ALJ") did not err and will affirm the decision of the ALJ.

PROCEDURAL BACKGROUND

On or about September 10, 2008, [1] Lipker filed an application for disability insurance benefits (Tr. 189; cf. Tr. 74). On March 5, 2009, the application was initially denied (Tr. 74). On April 27, 2009, Lipker pursued reconsideration (Tr. 91). On July 17, 2009, the application was again denied (Tr. 76).

Lipker then requested a hearing in a letter sent on August 11, 2009 (Tr. 81). ALJ McClain dismissed Lipker's application because Lipker failed to appear at that hearing despite two SSA attempts to contact her through mail correspondence from her last known address (Tr. 81-82). Lipker appealed the dismissal (Tr. 85). Because the ALJ did not have evidence that Lipker received her notice of the hearing, and because the ALJ failed to send a follow-up letter to Lipker to inquire why she did not appear, the SSA Appeals Council reversed and remanded the ALJ's dismissal (Tr. 86).

On January 14, 2013, Kansas ALJ Stueve held a video hearing (Tr. 36-73). On January 25, 2013, ALJ Stueve found that Lipker was not under a "disability" as defined in the Social Security Act (the "Act") (Tr. 1, 29). The Appeals Council of the SSA denied Lipker's request for review on March 19, 2014 (Tr. 1). Lipker timely filed this appeal on May 23, 2014 (Filing No. 1, see 42 U.S.C. § 405(g)). The Court now reviews the ALJ Stueve's decision, which stands as the Commissioner's final decision.

FACTUAL BACKGROUND

Lipker was a forty-two-year-old woman on her alleged onset date, January 31, 2007, and held a high school diploma (Tr. 17, 28). Lipker alleges disability due to "chronic back pain, degenerative chronic back pain in spinal [sic] and lower back, dizziness, and bipolar disorder" (Filing No. 1, at 3, ¶ 6) ( Compare Filing 1, with Tr. 87 ("You said that you are disabled due to meniscus tear, back problems, [post-traumatic stress disorder], bipolar disorder, knee problems, pain disorder and fibromyalgia."). Despite these inconsistencies, the Court recites the following from Lipker's medical records. See Weikert v. Sullivan, 977 F.2d 1249, 1254 (8th Cir. 1992) (citing Hix v. Dir. of Office of Workers' Comp. Programs, 824 F.2d 526, 527 (6th Cir. 1987)).

Lipker is not sure when her back pain started, but she estimated that it began in 1991 when she was working as a personal attendant (Tr. 361). In July 2005, Lipker was in a car collision and she was diagnosed with a lumbar strain (Tr. 344-47). In March 2007, Lipker presented to Smith County Family Practice for treatment of a cat bite on her right index finger (Tr. 355). On April 18, 2007, Lipker returned to Smith County Family Practice and reported lower back pain (Tr. 356). The clinical findings revealed that Lipker had some muscle spasm, she could walk on her toes and heels, she had equal and active reflexes, her muscle strength was equal bilaterally, and straight leg raising tests were negative (Tr. 356).

In 2007 to 2008, Lipker visited other clinics, complaining of back pain, but the clinical findings revealed normal psychological, neurologic, and musculoskeletal findings, including good eye contact, cooperation, range of joint motion, muscle strength, reflexes, sensation, gait, and balance (Tr. 361-62, 366, 368, 370, 372). On September 9, 2008, Lipker told Advanced Registered Nurse Practioner ("ARNP") Amanda Bickle ("Dr. Bickle") that she "blew" out her knee the day before and had pain when walking (Tr. 385). Lipker dropped off a handicap placard form for the provider to sign (Tr. 385). Lipker subsequently told Dr. Bickle that Ultram and Ibuprofen medication made her pain tolerable, and the examinations showed she had a good range of motion, no laxity, a steady gait, and she could transfer onto and off the table (Tr. 386). Lipker was alert, fully oriented, cooperative, and had good eye contact (Tr. 387).

On January 14, 2009, an agency sent Lipker to Sheryl Shundoff, Ph.D. ("Dr. Shundoff"), for a consultative mental examination (Tr. 401-04). Dr. Shundoff noted that, although Lipker exhibited grimaces and moaning when moving about, Lipker had "very little problem or apparent discomfort" when she bent forward to pick up her cell phone from the floor (Tr. 402). Dr. Shundoff reported that Lipker was fully oriented with no evidence of hallucination, delusion or psychosis; her recent and remote memory were intact; she could perform basic calculations and make change; her verbal skills were adequately spontaneous, continual, and productive; she had coherent and goal-directed thought processes; her insight was adequate; and her judgment was fair (Tr. 403).

One week later, on January 20, 2009, Lipker told Dr. Bickle that she had depression in the past and stopped taking any medication in September 2007 (Tr. 419). The examination showed Lipker was awake, alert, fully oriented, cooperative, and had good eye contact (Tr. 419). Dr. Bickle gave Lipker samples of Lexapro (Tr. 419).

On March 4, 2009, state agency doctors reviewed Lipker's records. On July 14, 2009, those doctors opined that Lipker could perform light and sedentary exertional work despite her impairments, pain, and obesity (Tr. 444-51, 455).

Pursuant to a law enforcement order, Lipker received inpatient mental health treatment between October 20 and November 17, 2009 (Tr. 458). The physical examination on admission was unremarkable (Tr. 458). The psychiatric examination showed Lipker was agitated; she had pressured speech; impulse control was sexual; thought process was vague and illogical with flight of ideas; she was delusional and obsessive, but denied hallucinations; she was unable to abstract and generalize; and she had limited insight, judgment, attention span, concentration, and fund of knowledge (Tr. 458). Lipker refused treatment, and Larned State Hospital ("LSH") obtained a court order for treatment and medication (Tr. 459). On discharge, LSH staff deemed Lipker able to meet basic needs independently, and she had met all goals, objectives, and treatment plan criteria (Tr. 460).

A January 2010 follow-up mental status examination at High Plains Mental Health Center ("High Plains") revealed that Lipker was appropriately dressed and groomed, she had an average intellectual assessment, her affect was appropriate, she was cooperative and fully oriented, and there was no evidence of memory impairment (Tr. 502-03). Lipker reported that she did not need medications to control her mood (Tr. 503). Lipker said that she did not need treatment and only participated at LSH because a foster care agency took her daughter from her (Tr. 512). The staff at High Plains closed Lipker's case and did not schedule any further treatment (Tr. 512).

On March 25, 2011, an examination at Montrose Memorial Hospital showed Lipker had an unstated degree of limitation of back motion, no limitations in her range of joint motion, no motor or sensory deficits, and no edema (Tr. 497). The remaining examinations between February 24, 2012, and October 31, 2012, continued to limited restrictions, if any. On February 24, 2012, Lipker was in no acute distress; her extremities had no clubbing, cyanosis, or edema; she had a normal range of motion in all upper and lower joints; her deep tendon reflexes were normal; and she had intact motor and sensory examination in her upper and lower extremities (Tr. 631). Two weeks later, a doctor at First Care Clinic signed Lipker's application for a handicap placard (Tr. 644). On March 15, 2012, Lipker had another examination in which she was well-developed, in no acute distress, fully oriented, and answering questions appropriately (Tr. 622-24). On March 27, 2012, APRN Lisa Whitton ("Dr. Whitton") completed a certification that stated Lipker was medically fit to obtain a two-year commercial driver's license (Tr. 645-48). On April 25, 2012, another examination showed Lipker was alert and oriented, her extremities had no edema, and she had no sensory or motor deficits (Tr. 572). In May 2012, Lipker had an allergic reaction to potato chips, and the examination showed she was interacting well and appropriately, her back had no CVA or other tenderness, and she was intact neurologically (Tr. 567-68). On May 22, 2012, Lipker had ...


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