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Rentzell v. Berryhill

United States District Court, D. Nebraska

May 1, 2018

SUSAN M. RENTZELL, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          RICHARD G. KOPF, SENIOR UNITED STATES DISTRICT JUDGE

         Plaintiff 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).

         I. NATURE OF ACTION & PRIOR PROCEEDINGS

         A. Procedural Background

         Plaintiff 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 decision”).

         B. Factual Background

         The 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, [1] 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. 502).
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. 723).
[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. 428-430).
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. She ...

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