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Shenk v. Berryhill

United States District Court, D. Nebraska

September 26, 2018

LORI D. SHENK, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security; Defendant.


          Joseph F. Bataillon Senior United States District Judge

         This is an action for judicial review of a final decision of the Commissioner of the Social Security Administration (“the Commissioner”). The plaintiff, Lori D. Shenk, appeals the Commissioner's decision to deny her application for Social Security Disability (“Disability”) and Supplemental Security Income (“SSI”) benefits under Titles II and XVI of the Social Security Act and seeks review pursuant 42 U.S.C. §405(g), see Filing No. 16 (Plaintiff's Motion for an Order Reversing the Commissioner's Decision) and Filing No. 19 (Defendant's Motion for an Order Affirming the Commissioner's Decision). A transcript of the hearing held on February 8, 2016, is found in the record at Filing No. 12-2. Administrative Record (“Admin. R.”) at 36-87. This Court has jurisdiction under 5 U.S.C. §§ 702 and 706 to review the final decision.


          Shenk applied for disability benefits on April 21, 2014. She alleges disability due to fibromyalgia, migraines, degenerative disk disease, carpal tunnel, and temporomandibular joint dysfunction (TMJ). Shenk claims a disability onset date of March 31, 2014. On April 9, 2014, at the age of 48, she filed for disability and SSI. Initially, the Commissioner denied her claims on July 9, 2014, and again on August 27, 2014, upon reconsideration. She later requested a hearing, held on February 8, 2016, with an Administrative Law Judge (“ALJ”). The Commissioner further denied benefits and held Shenk not disabled on March 11, 2016. Shenk seeks review of the ALJ's order denying disability benefits to claimant.

         Shenk was born in 1965. She now has an associate degree, and a variety of work experience, including bookkeeper, cashier, office clerk, and title searcher. Filing No. 12-2, Admin. R. at 42-52. At a hearing on February 8, 2016, Shenk testified that she has difficulties standing, walking, and sitting for long periods of time, which led her to quit her most recent job as an online research specialist for American Title. Id. at 41-42. During the testimony she asked the ALJ if she could stand up and stood up several times. Id. at 50, 66. She stated that she held this position for about four years. Id. at 42. She stated that the last two years she had been working at home. Id. at 42-43. Shenk testified that she was unable to sit at a computer all day long because it led to migraines. Id. at 43. She also testified that she previously held a variety of other jobs entailing light or sedentary work requiring varying levels of skill. Id. at 48-51. She reported she could not do a job that required sitting on a computer for the majority of the day. Id. at 47-48. Claimant stated that she left early or was absent from her job once a week due to fatigue or pain, especially in the winter. Id. at 53-55. She testified that she would not be able to work full-time but could perform job functions that include making appointments via telephone, taking down names and addresses, and answering simple questions for a hypothetical company in Omaha. Id. at 66-67.

         She testified that she currently does not write or use the computer for more than 15 minutes at a time, stand for more than 15 minutes at a time, or sit for more than 30 minutes at a time. Id. at 56-57. She stated that after sitting for 30 minutes she must alternate to standing for about five minutes. Id. at 68. She also stated that she does not get out of her house for socializing often, but she did go out for her birthday in October 2015 and traveled to Florida in 2014 for a relative's funeral. Id. at 63.

         Shenk then testified that she had sought treatment for her symptoms from her primary care physician. Id. at 58-59. She testified that her doctor told her conditions, “probably won't get any better.” Id. at 60. She reported that her treating physician proscribed her Tramadol and Hydrocodone for pain and Xanax for anxiety. Id. at 64. She explained that the Hydrocodone and Xanax make her drowsy. Id. at 64. She testified that she drove 10 miles to the hearing but had to abstain from her pain medication, Hydrocodone and Xanax, that day in order to drive to the hearing. Consequently, she rarely drives. Id. at 64. She testified that she needs help in the grocery store because she has difficulty walking the aisles. Id. at 65. She testified that she had surgery on her right wrist to help with carpal tunnel syndrome. Id. at 68. She stated that despite the recent pain in her wrist, which limited her ability to work in her job at American Title, she did not seek treatment. Id. at 69.

         Shenk's medical record reflects, among others, a diagnosis of fibromyalgia and lumbar disc disease. Her current physician has treated her since at least Mach 2013 for the associated pain and debilitation. See Filing No. 12-7, 8 at 309-325, 345-383, 396-400. She sees her treating physician as a follow-up for her fibromyalgia and lumbar condition nearly every month, and on occasion twice a month. For example, in 2015 she had 15 visits to her treating physician. In nearly every visit the diagnosis of fibromyalgia and lumbar disc disease is noted, and her status is updated. Bending, lifting, and twisting are uniformly noted as limited. Her fluctuating pain status is also documented. She is prescribed narcotic pain medication. Her physician regularly tests blood serum levels to document potential narcotic abuse. The tests are always within therapeutic levels. She is taking but not abusing the medication; nonetheless, she is taking narcotic medication due to her unrelenting pain. The medical record from her treating physician indicate that her doctor has from time to time lowered Shenk's dosages of pain medications, generally in relation to decreased levels of stress or activity. Id. at 348, 350. Her regular visits to her doctor and her adherence to prescribed pain medication continued despite losing her health insurance coverage, as noted in an office visit on April 3, 2015. Id. at 375.

         Her treating physician noted that for approximately one month in October 2014, claimant's mother temporarily moved into her house after suffering a stroke. The move increased the claimant's stress even though she was careful not to aggravate her lumbar disk disease. Id. at 363.

         The treating physician also observed that the claimant traveled twice during 2015. Id. at 372, 380. According to doctor's notes, her March 2015 travels included a trip to California. Id. at 372. Her second trip was to Florida in August 2015 for the funeral of a relative. Id. at 380.

         In January 2014, her treating physician completed a Family and Medical Leave Act (“FMLA”) request. Id. at 384-395. The doctor checked the box stating that Shenk was “unable to perform any of [her] job functions due to the condition.” Id. at 393. The same physician provided an opinion letter in February 2016 to claimant's attorney stating that claimant was disabled by her fibromyalgia, lumbar disk disease and post status carpal tunnel release. He opined that her fibromyalgia was the worst of her conditions and in combination with her lumbar disk syndrome could only be treated with minimally effective medication. Id. at 401-402. He opined that Shenk could not walk or stand for six hours a day and could not perform fine motor skills (grasping, handling, or fingering) for more than one third of the workday, and she would miss three or more days of work each month due to her symptoms and potential side effects of her medication. Id. at 402. The doctor concluded that the claimant would be unable to perform full-time employment after March 31, 2014. Id.

         A Social Security medical consultant was retained to provide a residual functional capacity (“RFC”) in June 2014. The consultant reviewed the claimant's medical records, took the claimant's medical history, reviewed the medications and examined her. The consultant also ordered and reviewed x-rays in July 2014. Id. at 331-344.

         The examination notes reported that cortisone shots in Shenk's left knee alleviate pain temporarily. Id. at 332. The consulting practitioner stated that claimant easily got on and off the exam table and sat comfortably in a chair during the duration of the history portion of the exam. Id. at 334. The motor strength examination indicated reduced grip strength in Shenk's right hand, and reduced bicep and triceps strength in the same arm. Id. at 336. The consulting doctor's entry stated that the examination was consistent with her diagnosis. Id. at 336-337. The doctor also indicated that the surgical release of carpal tunnel syndrome in her right hand was successful, though it may need to be repeated in the future. Id. at 336. The notes stated that the claimant had no irregularities in the movement of her fingers and had fine motor control. Id. at 336, 338. The consulting doctor added that the claimant would be able to perform jobs that give the option to sit or stand, but to avoid high stress situations. Id. at 337.

         The ALJ asked claimant if she could perform a job that requires her to make appointments, sit near a telephone, take messages, answer customer questions, and schedule appointments. She responded that she probably could do that job but was not sure how long she would be able to do it or whether she could do it full time. Filing No. 12-2 at 66-67.

         The medical consultant's Impression and Summary confirmed the claimant's past medical history and diagnosis of fibromyalgia, lumbar disk disease and post carpal tunnel release, among others. The consultant confirmed the claimant's opioid medications of Hydrocodone 10/325 PRN for pain, Tramadol 50mg up to three times a day and her anti-anxiety medication, Alprazolam 0.5mg daily. As to the fibromyalgia, the consultant found: “Physical examination today revealed tenderness in multiple areas consistent with fibromyalgia pain. This has limited the claimant's ability to lift and carry as well as to be active her in daily life and she also has fatigue in the afternoons which interfere with her ability to continue activities at that time.” The examiner reported a limitation of sitting and standing for longer than 30 minutes, ability to handle objects most of the time with some decreased ability in the right hand, lift and carry ten pounds in each hand. Filing No. 12-7 at 337. The claimant can drive and ...

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