United States District Court, D. Nebraska
SUSAN M. RENTZELL, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER
RICHARD G. KOPF, SENIOR UNITED STATES DISTRICT JUDGE
brings this action under Titles II and XVI of the Social
Security Act (“Act”), which provides for judicial
review of “final decisions” of the Commissioner
of the Social Security Administration. 42 U.S.C. §
405(g) (Westlaw 2018).
NATURE OF ACTION & PRIOR PROCEEDINGS
filed an application for disability benefits on January 24,
2014, under Title II (Filing No. 12-5 at CM/ECF pp. 238-239)
and Title XVI (Filing No. 12-5 at CM/ECF pp. 240-245). The
claims were denied initially (Filing No. 12-4 at CM/ECF pp.
159-162, 163-166) and on reconsideration. (Filing No. 12-4 at
CM/ECF pp. 169-177, 178-186.) On November 23, 2015, following
a hearing, an administrative law judge (“ALJ”)
found that Plaintiff was not under a “disability”
as defined in the Act. (Filing No. 12-2 at CM/ECF pp. 14-23.)
On January 12, 2017, the Appeals Council of the Social
Security Administration denied Plaintiff's request for
review. (Filing No. 12-2 at CM/ECF pp. 1-6.) Thus, the
decision of the ALJ stands as the final decision of the
Commissioner. Sims v. Apfel, 530 U.S. 103, 107
(2000) (“if . . . the Council denies the request for
review, the ALJ's opinion becomes the final
Defendant “concurs” with the statement of facts
in Plaintiff's brief, which is set forth verbatim below:
In her application for disability benefits, plaintiff stated
that she was born on October 11, 1969,  and that she
became unable to work on February 28, 2007 (Filing No. 12-5,
at CM/ECF p. 238), which was amended at her hearing to July
23, 2008 (Filing No. 12-2, at CM/ECF p. 45). The plaintiff
testified that she has worked part-time as a home health
provider. (Filing No. 12-2, at CM/ECF p. 45). She has
performed no substantial and gainful work activity since the
date of her alleged onset of disability, July 23, 2008.
(Filing No. 12-2, at CM/ECF p. 19).
At her hearing the plaintiff stated that he completed high
school for her level of education. (Filing No. 12-2, at
CM/ECF p. 46).
The ALJ determined at plaintiff's hearing that she has no
past relevant work. (Filing No. 12-2, at CM/ECF p. 26).
The plaintiff alleged that she could not work because of her
impairments. She complained of chronic lower back pain with
pinching in the legs and tingling in the toes. She said that
it feels like someone is twisting and breaking her lower
spine. She indicated that she develops these symptoms while
bending and lifting but feels better while lying down. She
noted that once she takes her medicine, these symptoms settle
down in about an hour. (Filing No. 12-6, at CM/ECF p. 281).
However, she contended that she experiences medication side
effects, including drowsiness. (Filing No. 12-6, at CM/ECF p.
282). Due to pain, she alleged that she could stand for one
hour, walk for one hour, and sit for six hours in an
eight-hour day. (Filing No. 12-7, at CM/ECF p. 348). In all,
she contended that she could not work due to physical
limitations. (Filing No. 12-7, at CM/ECF p. 344).
The plaintiff has a history of spine disorders. Medical
treatment has included narcotic pain management, physical
therapy, and lumbar facet injections. In addition, she
underwent a left sided LS-Sl hemilaminectomy and discectomy
in 2003 and right sided LS-Sl hemilaminectomy and partial
discectomy in February 2007. Since the alleged onset date,
however, the plaintiff has maintained an ability to perform a
reduced range of light work. (Filing No. 13-1, at CM/ECF p.
Through the end of 2007, treatment records show continued
problems with her lower back, although less reporting due to
upper respiratory infection following surgical intervention.
(Filing No. 13-7, at CM/ECF p. 730-731). In February 2008,
she again was focused on the continued back pain and she was
prescribed Soma. (Filing No. 13-7, at CM/ECF p. 729). By May
2008 she described some increasing lower back pain with
radiation into the lower extremities and received medications
including narcotics (Ultram, Vicodin and Soma). (Filing No.
13-7, at CM/ECF p. 728).
In June 2008, the plaintiff went to the emergency room (ER)
after “wrenching her back.” The record indicates
that she was well known to attending physicians. She was
tearful but sat in a chair in no acute distress. Her symptoms
improved with Toradol and Nubian. She received Ultram and
Soma to take home. (Filing No. 12-10, at CM/ECF p. 469).
In September 2008, the plaintiff visited primary care. She
said that she was not feeling well. She weighed 231 pounds.
She had a normal neurologic examination. She displayed
grossly intact cranial nerves. She had normal strength in the
upper and lower extremities. Her gait was still steady
without assistance. Her deep tendon reflexes were normal and
that she was still taking her Ultram, Vicodin and Soma as
prescribed. (Filing No. 13-6, at CM/ECF p. 725-726).
In January 2009 plaintiff called her primary care clinic
complaining of terrible back pain and reporting that Vicodin
had stopped helping and that she had discontinued it. She did
get a prescription for Soma. In March 2009, the plaintiff
presented with lower back and leg pain. As before, she
demonstrated a steady gait without assistance. She had some
right sciatic tenderness in the lumbar spine but was able to
flex forward to the knees. She preserved full strength in the
lower extremities bilaterally. Deep tendon reflexes were
trace in the knees. She had a positive straight leg raise
test on the right. There was no definite cause for her lumbar
symptoms, as her spine seemed unremarkable and the plaintiff
was referred to Dr. Mahalek. (Filing No. 13-6, at CM/ECF p.
[On] March 16, 2009, Plaintiff consulted James M. Mahalek,
M.D., and reported lower extremity pain with her symptoms
getting worse after the middle of the previous year without
any specific precipitating event or injury. She underwent two
epidural steroid injections which minimally improved her
symptoms. It was after that her symptoms began to
aggressively worsen. She describes the quality of her pain as
a burning sensation with severity being rated as a 7-8/10
when it is at its worst. Four views of her lumbar spine with
flexion and extension views done here today reveal advanced
degenerative disc disease with disc collapse at ¶ 5-S1.
Four views of her lumbar spine with flexion and extension
views done here today reveal advanced degenerative disc
disease with disc collapse at ¶ 5-S1 and an MRI was
ordered. (Filing No. 13-1, at CM/ECF p. 502-503).
Plaintiff followed up with Dr. Mahalek March 24, 2009, after
the MRI. She was found to be tender over the right SI joint
and the MRI showed lumbar degenerative disc disease and SI
joint dysfunction. While Dr. Mahalek could not find a
definitive cause for her symptoms, he felt that it may be
from the SI joint dysfunction and referred her back to her
primary care provider to talk about a weaning schedule for
her medications. (Filing No. 13-1, at CM/ECF p. 501).
In May 2010, the plaintiff went to the ER with neck pain. She
demonstrated normal strength in the extremities bilaterally.
She exhibited a normal gait without any assistance. Her
symptoms improved with Medrol, Dosepak, and Skelaxin. (Filing
No. 12-9, at CM/ECF p. 451- 452).
Throughout 2012, the plaintiff continued to treat with
medication management and emergency medical services. (Filing
No. 12-9, at CM/ECF p. 432-442). She also attended physical
therapy in April 2012. She was very emotional and guarded to
range of motion testing. Her mother indicated that the
plaintiff had a “low tolerance” to pain and got
very anxious with pain. She was educated on a home exercise
program. Her rehabilitation potential was fair to good.
However, she did not return to formal physical therapy until
the following year. (Filing No. 12-8, at CM/ECF p. 358-361).
In May 2013, the plaintiff returned to Dr. Mahalek. She
demonstrated normal range of motion in the hips. She had some
tenderness over the sciatic notch and over the PSIS.
Radiographs revealed severe DDD and disc collapse at ¶
5-S1 and moderate degenerative changes at ¶ 4-L5. She
was still able to flex forward, bringing the fingertips to
the ankles. She received another prescription for physical
therapy. (Filing No. 13-1, at CM/ECF p. 493-496).
Later in the month, the plaintiff attended a physical therapy
evaluation. Objective findings included tenderness to
palpation in the lumbar spine and a positive straight leg
raise test. In all, she demonstrated a good potential for
rehabilitation with skilled therapy. (Filing No. 12-8, at
CM/ECF p. 358).
Also in May 2013, the plaintiff went to the ER for back pain.
The record questions narcotic abuse or addiction. Originally,
she complained of numbness in the right leg. Later on, she
stated that she was having pain in that leg from the hip to
her toes. She displayed no points of tenderness. Straight leg
raises were negative bilaterally. Distal pulses were good.
There was no evidence of focal weakness in the lower
extremities. Sensation was intact. Her prognosis was poor due
to her unusual interpretation of pain. (Filing No. 12-8, at
CM/ECF p. 430-431). Twice more through the end of 2013, she
continued to seek and receive narcotic pain medication from
emergency medical providers. (Filing No. 12-8, at CM/ECF p.
In October 2013, the plaintiff presented to Heartland Family
Medicine two times with back pain first and then cramping.
Dr. Knackstedt gave her a prescription of Tramadol and Medrol
Dosepack for her back pain. Later in the month, Dr. Michael
L. Durr was reluctant to prescribe anything stronger than
Ultram, but she received a Toradol shot. (Filing No. 13-6, at
CM/ECF p. 689-691).
In January 2014, the plaintiff returned to Dr. Mahalek with
lower back pain. A MRI from December 2013 was essentially
benign. There was evidence of moderate DDD at ¶ 5-S1,
foraminal narrowing in the lumbar spine, most pronounced at
¶ 5-S1, and mild lower lumbar facet arthropathy. The
treatment plan was conservative. Surgery was a last result.