United States District Court, D. Nebraska
MARY K. PALMER, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security; and OFFICE OF GENERAL COUNSEL SOCIAL SECURITY ADMINISTRATION, Defendants.
MEMORANDUM AND ORDER
F. BATAILLON, SENIOR UNITED STATES DISTRICT JUDGE
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
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.
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).
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).
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
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.
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.
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).
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.
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,
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.
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.
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)).
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).
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.
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. §
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).