United States District Court, D. Nebraska
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, Dawn
Prochaska, appeals the Commissioner's decision to deny
her application for Social Security Disability
(“Disability”) benefits under the Social Security
Act and seeks review pursuant to 42 U.S.C. §405(g),
see Filing No. 10 (Plaintiff's Motion for an
Order Reversing the Commissioner's Decision) and Filing
No. 11 (Defendant's Motion for an Order Affirming the
Commissioner's Decision). A transcript of the hearing
held on February 6, 2017, is found in the record at Filing
No. 8. Administrative Record (“Admin. R.”) at
at the age of fifty, applied for a period of disability and
disability insurance benefits on October 20, 2014. She
alleges disability due to brain aneurysm, right arm nerve
damage, numbness on the right side of her body, memory loss,
and left eye double vision. Prochaska claims a disability
onset date of August 31, 2013. Initially, the Commissioner
denied her claims on February 3, 2015, and again on May 7,
2015, upon reconsideration. On June 4, 2015, she filed a
written request for a hearing with an Administrative Law
Judge (“ALJ”). This hearing was held on February
6, 2017, in Lincoln, Nebraska. The Commissioner further
denied benefits and held Prochaska not disabled on April 12,
2017. Prochaska seeks review of the ALJ's order denying
was born in 1964. She has a limited education, and a history
of work experience as an injection molding machine operator,
tractor assembler, and groundskeeper. At a hearing on
February 6, 2017, Prochaska reported that since her aneurysm,
there are times she must lay down because she is physically
in too much pain to sit or stand. This occurs a couple of
times per day for about ten minutes. Filing No. 8 Admin. R.
at 53. Prochaska stated that she can only sit for
approximately fifteen minutes before she needs to lay down or
get up and walk around. Id. at 55. She testified
that she can only stand for approximately five minutes
without needing to sit or lay down. Id. at 53.
Prochaska can reach overhead with her right hand, but
reported it causes her pain. Id. at 53-54. Prochaska
indicated that she has trouble sleeping and takes
over-the-counter medication. Id. at 52. Prochaska
also reported that she has had problems with constant double
vision in her left eye since her surgery. Id. at 64.
testified that since her aneurysm, she has difficulty
standing because it hurts her back and hip. This led her to
quit her most recent job of sweeping the floors part-time at
Duck Creek Farms. Id. at 39-40 and 51. Prior to
sweeping floors, for about three hours per day, Prochaska
worked at Duck Creek Farms mowing the grass during the 2013,
2014, and 2015 grass mowing seasons. She testified that she
stopped mowing the grass in 2015 because of her pain.
Id. at 43. Prochaska testified that she was a
groundskeeper at Duck Creek Farms at the time of her aneurysm
and that after the aneurysm she could not complete many of
her duties, such as digging holes and assisting in the shop,
because she did not have the strength to pick anything up
anymore. Id. at 47. Prochaska specified in her
testimony that the heaviest object she could lift was a
gallon of milk. Id. at 49.
testified that since her aneurysm, she cannot drive alone
further than five miles because she forgets where she is
going. Id. at 48. She stated that she now has
problems remembering things such as what movies she and her
husband have watched, if people came over to their home in
the evening, and if she has taken her medication.
Id. at 56-57. Prochaska's husband reminds her to
take her medication. She regularly takes Extra Strength Aleve
for her pain and high blood pressure medicine. Id.
stated that she can provide some care for her four-year-old
grandson whom she and her husband have custody of four days a
week, but that she cannot lift him. Prochaska testified that
she takes her grandson to daycare when she is in too much
pain and does not think she can take care of him very well at
home. Id. at 48-49. She stated that her grandson
attends daycare at least one day per week and up to two or
three days, depending on her pain level. Id. at 55.
medical record reflects that she presented to the emergency
department at the Fremont Health Medical Center on August 31,
2013 with an altered level of consciousness and new onset
seizure. Id. at 362. A computed tomography (CT) scan
of her brain revealed a left intraparenchymal hematoma with
associated left sided subarachnoid blood, which was noted to
possibly be sequela of a ruptured MCA aneurysm. Id.
at 362-363. Prochaska was subsequently transferred from the
Fremont Health Medical Center to the University of Nebraska
Medical Center where Dr. William Thorell, MD, performed a
left frontotemporal craniotomy and clipping of ruptured left
middle cerebral artery aneurysm and placed a right frontal
external ventricular drain for the treatment of hydrocephalus
on August 31, 2018. Id. at 506. Medical records show
that Prochaska remained at the hospital until she was
discharged on September 13, 2013. Upon discharge the medical
record reflects she was stable neurologically and continued
to show signs of improvement. Id. at 512.
presented to Brandon Reicks, PA, for a follow up on October
22, 2013. Id. at 514. On this date, the medical
records reflect that Prochaska had done well in speech and
physical therapy but had complaints about numbness and
weakness in her right hand and left eye double vision when
looking to the left. Id. Reicks noted that
Prochaska's strength in her right upper and lower
extremities was essentially full with some very mild
breakaway weakness noted when compared to the left side and
that she ambulated with a non-antalgic gait. Id. The
records further state that although there was no observable
evidence of word-finding difficulty at the appointment,
Prochaska reported the issue on this date. Id. The
follow up also notes that Prochaska had not contacted
ophthalmology yet due to a lack of insurance. Id. at
was seen by Dr. Antoinette Tribulato, a non-treating
physician, for a consultative examination on January 27,
2015. Id. at 321. The medical report from this
examination notes that Prochaska reported pain and numbness
in her right arm and hand as well as headaches. Id.
Dr. Tribulato observed that Prochaska presented with an
antalgic gait and difficulty tandem walking. Id. at
322. The report documents that Prochaska had no apparent
difficulty writing or hearing and that she followed
directions, but that she did have difficulty recalling three
items, spelling and counting backwards, and some obvious
word-finding difficulty. Id. at 322 and 327. Dr.
Tribulato concluded that Prochaska was limited in her ability
to lift, carry, and grip on the right, but that she could
handle sedentary duty. Id. at 326. Dr. Tribulato
further concluded that Prochaska had no significant
limitations to sitting or standing, mildly limited walking as
tolerated, limited bending and twisting, and could not climb
or crawl. Id.
afforded Dr. Tribulato's opinion “great
weight.” Id. at 17. The ALJ found that Dr.
Tribulato's opinions were “mostly consistent with
the medical evidence of records in regards to the
claimant's limitations.” Id. The ALJ found
that Dr. Tribulato had no explanation for his opinion that
the claimant could only perform sedentary work. Id.
was seen by Dr. Holly Filcheck, PhD, for a non-treating,
consultative psychological interview and report on January
27, 2015. Id. at 331. Dr. Filcheck's records
reflect that Prochaska did not use any assistive devices, but
that Prochaska reported difficulty with her immediate and
short-term memory, making it hard for her understand and
remember short and simple instructions. Id. at 331
and 333-334. Dr. Filcheck's report noted that Prochaska
appeared to have difficulty remembering complex instructions
due to memory concerns, but that her concentration and
attention appeared to be adequate. Id. at 333. Dr.
Filcheck concluded that Prochaska would have no difficulty
adapting to changes in life or structure but recommended a
WMS-IV to determine the nature of her memory concerns.
Id. The ALJ afforded Dr. Filcheck's opinion
“some weight.” Id. at 17.
was also seen by her treating physician's assistant,
James D. Witter, PA-C, between January 29, 2015 and August
16, 2016. Id. at 336-339, 499-503. Progress notes
from a visit on August 21, 2015, reflects that Mr. Witter
offered Prochaska other pain medications on this date for her
chronic right pain and weakness, but that she was not
interested mainly because of cost. Id. at 503. These
progress notes also reflected that Prochaska reported that
she worked about nine hours per week at this time, but that
she felt like she had to take frequent breaks. Id.
It also reflected her diplopia and memory recall issues.
Id. A progress note from August 16, 2016, stated
that Prochaska was in for a follow up regarding her
hypertension and that things were going well for her on this
date. Id. at 502. The progress note on this date
does not reference Prochaska's pain or history of
August 21, 2015, Mr. Witter, PA-C, prepared a medical source
statement and opined that Prochaska could not reasonably be
expected to work an 8-hour day, 40-hour work week, on a
regular basis, without missing more than two days per month
due to her disabilities. Id. at 342-343. Mr. Witter
opined that Prochaska had the following limitations: sitting,
standing, walking, stooping, and climbing. Id. Mr.
Witter further concluded on the medical source statement that
Prochaska would have a ...