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Palmer v. Colvin

United States District Court, D. Nebraska

July 25, 2016

MARY K. PALMER, Plaintiff,



         The plaintiff, Mary Palmer, appeals the denial of her application for disability insurance benefits under the Social Security Act, 42 U.S.C. § 405(g). Filing No. 1 (Complaint). The Commissioner of the Social Security Administration initially denied Palmer’s application on January 15, 2013, and again upon reconsideration on March 27, 2013. On April 9, 2013, Palmer filed a Request of Hearing with an Administrative Law Judge (“ALJ”). On November 18, 2013, an ALJ heard Palmer’s claim for disability insurance and issued an unfavorable decision on January 9, 2014 that denied her claim. Palmer then filed a request for the Appeals Council to review the ALJ’s decision. The Appeals Council denied this request on June 2, 2015. Following the denial, Palmer filed a complaint before this Court.

         I. BACKGROUND

         Palmer, born in January 1968, successfully completed high school and two years of college with no specialized job training, trade, or vocational school. Filing No. 8-6 at 2, 14 (Work History Report). Palmer worked as an Assistant Branch Manager for the Douglas County Treasurer Office from May 1994 to September 2012, typically clocking in eight hours per day, five days per week. Id. at 5-6. When asked to describe the duties she performed as Assistant Branch Manager, Palmer answered: “A lot of walking and standing to monitor employees and to assist customers. . . . lifting boxes of license plates and office supplies. Computer work as well to run reports. . . [and] check emails. . .” Id. at 15.

         The Douglas County Civil Service Commission describes the primary duties of an Assistant Branch Manager as, “Assist[ing] in directing and overseeing the work of staff in the daily operation of a Branch Office” and “Respond[ing] to questions from the public and staff regarding applicable State statutes and Douglas County/departmental procedures. . . .” Filing No. 8-7 at 34 (Position Description). Basic skills and abilities required include the ability to tolerate considerable standing and walking in the performance of duties, the ability to safely lift and move objects which may weigh up to 35 pounds, and occasional climbing, bending, squatting, stooping, kneeling, and crouching. Id. at 35. Although she is no longer working, Palmer is still able to run errands, cook dinner, and perform minor household chores that do not require heavy lifting or bending. Filing No. 8-6 at 24 (Daily Activities and Symptoms Report).

         Palmer complains of a stabbing pain in her neck and shoulders, congestion, lack of sleep, and limited mobility in her neck. Id. at 26. A look at her medical history reveals chronic rhinosinusitis, obesity, hypertension, hypercholesterolemia, stress incontinence, irritable bowel syndrome, and GERD (gastroesophageal reflux disease). Filing No. 8-11 at 4 (Non-Examining Orthopedic Doctor Report). There is also documentation of problems with chronic headaches, myofascial pain, depression, insomnia, osteoarthritis, allergies, and asthma throughout Palmer’s past medical care under her primary physician, Dr. Donald Rigler, D.O. Filing No. 8-8 at 39, 47, 63 (Progress Notes from Dr. Rigler). As of October 1, 2012, Dr. Rigler acted as Palmer’s primary physician for twenty years. Filing No. 8-10 at 52 (Long Term Disability Claim Physician’s Statement). An MRI on December 23, 2010 revealed degenerative joint disease of her neck and back. Filing No. 8-8 at 101 (Radiology Imaging Services Report). Another MRI on May 2, 2013 revealed degenerative joint disease of her hips. Filing No. 8-13 at 57 (Radiology Imaging Services Report). Palmer states that her daily physical activity is limited because of constant neck pain and headaches. Filing No. 8-6 at 33 (Disability Report Appeal).

         On May 7, 2009, at the direction of Dr. Rigler, Palmer underwent an MRI on her left shoulder after experiencing chronic lateral shoulder pain. Filing No. 8-10 at 44 (MRI Shoulder Results Report). The interpreting physician noted that probable calcification of the supraspinatus tendon near its insertion was likely to suggest calcific tendonitis in Palmer’s left shoulder. Id. at 45. Dr. Rigler referred Palmer to Dr. M. Andrew Thompson, M.D., who treated her left shoulder with an injection on June 24, 2009. Filing No. 8-10 at 41 (Progress Note). Dr. Thompson also recommended physical therapy to improve the range of motion and strength of her left shoulder. Id. The treatment made Palmer’s pain “much improved.” Id.

         On December 17, 2010, Palmer complained to Dr. Rigler of pain on the right side of her neck that worsened whenever she would turn her head to the right. Filing No. 8-8 at 91 (Office Visit). She did not complain of any radiation of the neck pain into her right arm and denied any significant numbness, tingling, or weakness of the right arm. Id. Six days later, on December 23, 2010, Dr. Rigler ordered Palmer to undergo an MRI because of pain and numbness in her right shoulder, along with neck pain. Id. at 99. The interpreting physician discovered mild accentuation of the thoracic kyphosis, mild multilevel degenerative changes in the cervical spine, and a tiny disk protrusion at C4-C5. Id. at 98-99. When Dr. Rigler spoke to Palmer about the results of the MRI on December 30, 2010, she reported still having “a lot” of posterior neck pain radiating into her right arm. Id. at 101.

         Because of the pain in her right arm, Dr. Rigler referred Palmer to Dr. Patricia Chudomelka, M.D., PhD., for a cervical epidural nerve block. Id. On January 1, 2011, at age 42, Palmer received a cervical epidural steroid injection and a right sided occipital trigger point injection. Id. at 3. On a June 12, 2012 visit to Dr. Rigler, Palmer complained of continuing pain radiating from her neck into her right arm with intermittent numbness and tingling. Id. at 56. On March 3, 2013, Dr. Rigler again sent Palmer to Dr. Thompson, who gave her an injection in her right shoulder. Filing No. 8-10 at 17, 19 (Patient Visit Note). Dr. Thompson opined that her pain symptoms were “likely related to AC joint arthritis.” Id. at 18. On September 25, 2013, at age 45, Palmer underwent arthroscopic right shoulder surgery. Filing No. 8-13 at 10 (Hospital Chart Notes). After surgery, Dr. Thompson diagnosed her with impingement syndrome and osteoarthritis of the acromioclavicular (AC) joint. Id.

         On February 9, 2011, at age 43, Palmer sprained her left shoulder during a slip in the shower. Filing No. 8-8 at 88-89. Palmer elected to have surgery on her left shoulder on May 12, 2011, performed again by Dr. Thompson. Filing No. 8-10 at 37. Afterwards, Dr. Thompson diagnosed Palmer with impingement syndrome and rotator cuff calcific tendonitis of the left shoulder. Id. He prescribed Norco and physical therapy to help Palmer recover from the surgery. Id. at 35. Seven months post-surgery, Palmer told Dr. Rigler of increasing pain and stiffness in her left shoulder and directly above her left collarbone. Filing No. 8-8 at 75. She stated that it was sometimes painful to lay on her left side because of the shoulder pain and that her range of motion in her left shoulder had decreased. Id. On December 13, 2011 she received an injection in her left shoulder by Dr. Thompson to treat the pain. Filing No. 8-10 at 20 (Progress Note).

         Dr. Rigler eventually referred Palmer to Dr. Criscuolo, M.D., a pain management specialist, for her chronic neck and back pain. Filing No. 8-8 at 126 (Office Visit). On a July 18, 2012 visit, after detailing her neck and back pain, Dr. Criscuolo instructed Palmer to follow a core muscle strengthening program and provided a back exercise program for her to follow. Id. at 128. He also prescribed Mobic for her neck and back pain, in addition to the Flexeril and hydrocodone already prescribed to Palmer. Id. On August 15, 2012 Dr. Criscuolo prescribed Lidoderm patches to help ease Palmer’s neck and lower back pain. Id. at 124.

         On August 29, 2012, at age 44, Palmer underwent her first acupuncture treatment for her neck and lower back pain. Id. at 120. She next received acupuncture on September 11, 2012. Id. at 117. Dr. Criscuolo noted less spasming throughout her spine, and Palmer also noted some relief from the procedure. Id. at 118. In 2012, Palmer would again receive acupuncture on October 4, November 1, and December 4. Id. at 114, 111, 148. Her last treatment on record is January 14, 2013. Id. at 145. Palmer reported “some relief” from her neck and back pain after each session. Id. at 112, 115, 118, 146, 148.

         On October 1, 2012, Palmer sought counseling from Dr. Rigler regarding her ability to work. Id. at 39. She requested part time hours at work, but was told such hours were unavailable. Id. She reported having difficulty with daily headaches, pain radiating from her right posterior neck into her right arm, upper back pain, and intermittent lower back pain. Id. Palmer stated she could not sit, stand, or walk for more than an hour. Id. That same day, Dr. Rigler opined that Palmer’s incapacity to sit or stand for longer than one hour or lift more than five pounds would render her unable to work. Filing No. 8-10 at 50 (Long Term Disability Claim Physician’s Statement). He also stated that her inability to perform repetitive work above shoulder level height would render her unable to work. Id. He expected Palmer’s degenerative joint disease of the neck and back to worsen, and “never” expected Palmer to return to her prior level of functioning. Id. Dr. Rigler opined that the probable duration of her condition was “indefinite.” Id. at 52.

         During a January 7, 2013 appointment with Dr. Rigler, Palmer reported that after quitting her job a few months prior, her stress level had improved. Filing No. 8-8 at 134 (Office Visit). Palmer’s self-reported last day of work was September 10, 2012. Filing No. 8-6 at 13 (Disability Report). However, since quitting her job, she had not been going to acupuncture or massage therapy as frequently as before. Filing No. 8-8 at 134 (Office Visit). On May 2, 2013, at age 44, an MRI of Palmer’s left hip revealed moderate degenerative joint disease. Filing No. 8-13 at 54. On July 26, 2013, Palmer reported experiencing anxious and fearful thoughts, depressed mood, and sleep disturbance. Id. at 48. She cited increased stress as her father was very ill with terminal esophageal cancer at the time. Id. At this time she denied experiencing any panic attacks. Id. As of September 16, 2013, medical records indicate Palmer was on sixteen different active medications for her various health issues. Id. at 43-44. Her prescriptions included Ambien, Vicodin, Flexeril, Propranolol, Lidoderm, and Mobic. Id.


         In an appeal of the denial of Social Security disability benefits, this court “must review the entire administrative record to ‘determine whether the ALJ's findings are supported by substantial evidence on the record as a whole’” and “‘may not reverse . . . merely because substantial evidence would support a contrary outcome.’” Johnson v. Astrue, 628 F.3d 991, 992 (8th Cir. 2011) (quoting Dolph v. Barnhart, 308 F.3d 876, 877 (8th Cir. 2002) (alteration in original). Substantial evidence is that which a “reasonable mind might accept as adequate to support a conclusion.” Id. (quoting Brown v. Astrue, 611 F.3d 941, 951 (8th Cir.2010)).

         When reviewing the decision not to award disability benefits, the district court does not act as a fact-finder or substitute its judgment for the judgment of the ALJ or the Commissioner. See Bates v. Chater, 54 F.3d 529, 532 (8th Cir. 1995). The court may not reverse a decision supported by substantial evidence, “even if inconsistent conclusions may be drawn from the evidence, and even if [the court] may have reached a different outcome.” McNamara v. Astrue, 590 F.3d 607, 610 (8th Cir. 2010) (citation omitted). Nevertheless, the court’s review “is more than a search of the record for evidence supporting the Commissioner’s findings, and requires a scrutinizing analysis, not merely a ‘rubber stamp’ of the [Commissioner’s] action.” Scott ex rel. Scott v. Astrue, 529 F.3d 818, 821 (8th Cir. 2008) (alteration in original) (citations omitted) (internal quotation marks omitted). In determining whether substantial evidence in the record supports the decision, the court must consider evidence that both detracts from and bolsters the Commissioner’s decision. Singh v. Apfel, 222 F.3d 448 (8th Cir. 2000) (citations omitted).

         The court must also determine whether the Commissioner’s decision “is based on legal error.” Lowe v. Apfel, 226 F.3d 969, 971 (8th Cir. 2000) (citations omitted). The court does not owe deference to the Commissioner’s legal conclusions. See Juszczyk v. Astrue, 542 F.3d 626, 633 (8th Cir. 2008).

         A disability is the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C. § 423(d)(1)(A). To determine whether a claimant is disabled, the Commissioner must perform a five-step sequential analysis described in the Social Security Regulations. 20 C.F.R. §§ 404.1520(a), 416.920(a). Specifically, the Commissioner must determine: “(1) whether the claimant is engaged in any substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the impairment meets or equals an impairment listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1; (4) whether the claimant can return to her past relevant work; and (5) whether the claimant can adjust to other work in the national economy.” Tilley v. Astrue, 580 F.3d 675, 678 n 9 (8th Cir. 2009). “Through step four of this analysis, the claimant has the burden of showing that she is disabled. Only after the analysis reaches step five does the burden shift to the Commissioner to show that there are other jobs in the economy that a claimant can perform.” Steed v. Astrue, 524 F.3d 872, 874 n.3 (8th Cir. 2008) (citations omitted). If the ALJ finds that a claimant is disabled or not disabled at a step, the evaluation does not go on to the next step. 20 C.F.R. § 404.1520(a)(4).

         In order to evaluate the claimant’s impairments at steps four and five of the analysis, the ALJ must determine the claimant’s residual functional capacity (“RFC”). 20 C.F.R. §§ 404.1520(e), 416.920(e). A claimant’s RFC represents what he or she can do despite his or her limitations. 20 C.F.R. § 404.1545. It is the ALJ’s duty to investigate the facts and develop the arguments both for and against granting benefits. Sims v. Apfel, 530 U.S. 103, 111 (2000) (“Social Security proceedings are inquisitorial rather than adversarial.”). A claimant’s RFC is a medical question; therefore,

[s]ome medical evidence must support the determination of the claimant’s RFC, and the ALJ should obtain medical evidence that addresses the claimant’s ability to function in the workplace. In evaluating a claimant’s RFC, the ALJ is not limited to considering medical evidence, but is required to consider at least some supporting evidence from a professional.

Masterson v. Barnhart, 363 F.3d 731, 738 (8th Cir. 2004) (citations omitted) (internal quotation marks omitted).


         A. ...

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