United States District Court, D. Nebraska
LORI D. SHENK, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security; Defendant.
MEMORANDUM AND ORDER
F. Bataillon Senior United States District Judge
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.
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.
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.
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
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.
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
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.
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.
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.
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.
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.
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.
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 ...