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Schlisner v. Berryhill

United States District Court, D. Nebraska

July 3, 2019

NANCY BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.


          Richard G. Kopf Senior United States District Judge.

         Plaintiff Stacie Schlisner brings this action under Titles II and XVI of the Social Security Act, which provide for judicial review of “final decisions” of the Commissioner of the Social Security Administration. 42 U.S.C. § 405(g) (Westlaw 2019).


         A. Procedural Background

         Schlisner filed an application for disability benefits on February 19, 2015, under Titles II and XVI. The claims were denied initially and on reconsideration. Following an April 26, 2017, hearing, an administrative law judge (“ALJ”) found on October 16, 2017, that Schlisner was not disabled as defined in the Social Security Act (Filing No. 16-2 at CM/ECF pp. 12-23). Following the five-step sequential analysis[1] for determining whether an individual is “disabled” under the Social Security Act, 20 C.F.R. § 404.1520, the ALJ concluded in relevant part:

1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2019.
2. The claimant has not engaged in substantial gainful activity since June 6, 2014, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: residuals of lumbar spine surgery, obesity, asthma, mood disorder, anxiety (20 CFR 404.1520(c) and 416.920(c)).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, the undersigned finds the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(b) and 416.967(b) with additional postural and environmental limitations. The claimant is able to stoop, kneel, crouch, and crawl occasionally. She is able to perform work that allows her to stop working for about one minute every 30 minutes to stretch in order to increase her comfort. She is able to perform work that does [not][2] expose her to sustained and concentrated extreme temperatures, fumes, or dust. She is able to perform work that does not require more than incidental and superficial social interaction.
6. The claimant has no past relevant work (20 CFR 404.1565 and 416.965).
7. The claimant was born on July 5, 1978 and was 35 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563 and 416.963).
8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564 and 416.964).
9. Transferability of job skills is not an issue because the claimant does not have past relevant work (20 CFR 404.1568 and 416.968).
10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act, from June 6, 2014, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).

(Filing No. 16-2 at CM/ECF pp. 14-23 (intervening discussion and bold typeface deleted).)

         On July 29, 2018, the Appeals Council of the Social Security Administration denied Schlisner's request for review. (Filing No. 16-2 at CM/ECF pp. 1-7.) 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. Issues on Appeal

         Schlisner asserts that the ALJ committed a litany of errors which, summarized and condensed, can be described as: (1) erroneously deciding that Schlisner does not have an impairment or combination of impairments that meets or medically equals the severity of Listing 1.04; (2) improperly weighing the opinions of Schlisner's treating physician; (3) failing to develop the record; (4) improperly assessing her RFC; and (5) posing an improper hypothetical question to the vocational expert (“VE”). (Filing No. 22 at CM/ECF p. 3.)

         C. Statement of Medical Factual & Opinion Evidence

         The Plaintiff has set forth a Statement of Material Facts related to Schlisner's physical and mental impairments, with which the Defendant “generally concurs.” (Filing No. 22 at CM/ECF pp. 4-9; Filing No. 26 at CM/ECF p. 2.)

Stacie Schlisner is 40 years of age, having been born on July 5, 1978. She is a divorced mother of 4 children who at the time of trial ranged in age from 20 to 15. Claimant's vocational experience is largely in unskilled customer service/retail experience at a light exertional level. Ms. Schlisner has a history of severe physical and mental impairments including thoracic back pain (spondylosis, nerve root irritation, disc disease), lumbar pain/degenerative disc disease (disc bulge at L4-5 and L5-S1 with right paracentral disc protrusion at L5-S1), neck pain, major depressive disorder recurrent episodes severe, chronic rhinitis, chronic sinusitis, recurrent pneumonia, dyspnea/shortness of breath, COPD, obstructive sleep apnea, migraine headaches, adjustment disorder with anxiety, generalized anxiety disorder, dependent personality disorder, nausea, asthma, chronic urinary tract infections/urinary frequency, foot pain and plantar faciitis. She also noted daily fatigue impaired concentration and focus, impaired memory, and poor/decreased sleep/insomnia.[3]
Treatment for her back pain has included non-steroidal anti-inflammatory medications, opioid analgesics, muscle relaxants, trigger point injections, physical therapy, electrical stimulation/TENS therapy, chiropractic treatment, thoracic and lumbar epidural steroid injections, orthopedic evaluation, and three back surgeries (including two that pre-dated her application filing which consisted of fusion at L8-T9 performed by Dr. McClellan and a lumbar spine surgery consisting of fusion/fixation of L4, L5 and S1 vertebral bodies[)].
Ms. Schlisner's chronic pain issues are long-standing and they affected her in the workplace. She worked for 14 years at Target stores, working herself up to a team lead, managing the floor but she left that job (on mutual agreement) due to her pain complaints. In July of 2014, prior to her filing for disability, and prior to ending her job with Target, Ms. Schisner's treating physician, Dr. Timothy Sullivan, noted that she “had a long history of chronic thoracic back pain” and she was “disabled partially from this.” Dr. Sullivan indicated that she was utilizing narcotic pain medicines to manage her symptoms and he placed her on work restrictions of no more than 30 hours a week, 6 hours per day to avoid worsening pain or disc inflammation. Unfortunately, Ms. Schlisner's pain and problems only continued to worsen with time such that she was unable to perform the tasks required of her job in a consistent and reliable manner.
On October 13, 2014, Dr. Timothy Sullivan opined that Ms. Schlisner “has a disability as defined by the Social Security Act” and had “a severe, chronic disability which is attributable to a mental and/or physical impairment or combination of mental and physical impairments…is likely to continue indefinitely; and results in substantial functional limitations in three or more of the following areas of major life activity: self-care; receptive and responsive language; learning; mobility; self-direction; capacity for independent living; and economic self-sufficiency.”
Dr. Sullivan referred Ms. Schlisner to numerous specialists to help manage her pain and limitations over the years [rheumatology, pulmonary, cardiology, dermatology, urology, nephrology, pain management, sleep study], yet her pain and problems persisted. On January 19, 2015, Dr. Sullivan noted that he continued to diagnose Ms. Schlisner with thoracic back pain, thoracic disc disease, asthma and fatigue. He noted her prognosis was poor and she was unable to work at that time. He further indicated that she was unable to do any lifting, she was unable to stand more than 1 to 2 hours, and must change positions often. Dr. Sullivan also indicate[d] that Ms. Schlisner's conditions adversely affected her cognition, thinking and physical abilities. Dr. Sullivan continued to help manage Ms. Schlisner's ongoing and chronic pain complaints. In a report dated March 8, 2015, he noted that Ms. Schlisner's impairments were expected to last at least twelve months. He noted that in an 8[-]hour working day (with normal breaks), Ms. Schlisner could only stand or walk 0-2 hours and could only sit 3 hours. He also noted that she would need a job that would permit her to shift positions at will from sitting, standing or walking, and that she had significant limitations with reaching, handling and fingering. Dr. Sullivan indicated that during a typical work day, Ms. Schlisner would frequently experience pain or symptoms severe enough [to] interfere with attention and concentration, and would likely be absent from work as a result of impairments more than four days per month. Dr. Sullivan again echoed those opinions in an office note dated April 7, 2015 wherein he said [Ms. Schlisner] is currently disabled from these medical illnesses. She is currently unable to work secondary to the medical illnesses and ongoing sequela to the medicines and illnesses.
Dr. Sullivan's opinions were then mirrored by her mental health provider, Patricia Lenz, APRN-NP in correspondence dated April 13, 2015. At that time, Nurse Lenz reported Ms. Schlisner was a patient in her office and it was her opinion that . . . “[d]ue to her depressive and anxiety symptoms, Stacie has been unable to maintain full-time employment.” In an office note dated October 13, 2015, Dr. Timothy Sullivan discussed Ms. Schlisner's active problems at that time as cough with dyspnea, and wheezing, along with urinary frequency, asthma, chronic lumbar pain, and thoracic spine pain. As to Ms. Schlisner's thoracic pain complaints, Dr. Sullivan noted that her symptoms included back pain, neck pain, lower extremity numbness, weakness, and paresthesias, urinary retention, urinary incontinence, and difficulty breathing. He noted her symptoms were exacerbated by sitting, standing, lifting, bending, twisting, overhead reaching, deep breathing, and coughing/sneezing. Dr. Sullivan described her current treatment as activity modification, opioid analgesics, muscle relaxants, and prescribed exercises. He stated, “she has had the thoracic back spasm for years and years, ” noting that “it really did not change much. We have tried many different modalities to help this. She has seen multiple specialists.” In assessing that pain, Dr. Sullivan noted “She continues to be disabled from her back spasms, thoracic back pain and low back pain. She does not show any significant improvement. We talked about changing her pain medicines around. We talked about physical therapy…She continues to be disabled from her occupation and her rotation because of the back spasms, back pain, ongoing asthma and recurrent urinary tract infections. Therefore, we will continue to work with her with her medicines and her rehabilitation.”
Ms. Schlisner's health condition has only deteriorated over time. Dr. Sullivan provided an update on October 21, 2015. At that time, he again noted he continued to see Ms. Schlisner monthly for her thoracic and low back pain, asthma, and recurrent UTIs. He again noted she could only stand or walk between 0 to 2 hours in a regular 8 hour work day, and could only sit up to 3 hours during that time. He also noted she would need a job that would allow her to shift positions at will and could only occasionally lift less than 10 pounds. Dr. Sullivan reported significant limitations in in [sic] fingering and noted that Ms. Schlisner's depression and anxiety affected her overall condition. He also indicated that in a typical work day, Ms. Schlisner's pain or other symptoms were severe enough to interfere constantly with the attention and concentration needed to perform even simple work tasks. As to the degree to which he believed Ms. Schlisner could tolerate work stress, Dr. Sullivan noted that she was “incapable of even ‘low stress' jobs” given her persistent pain, asthma symptoms, muscle spasms, and wheezing. He also again indicated that she would likely miss more than four days of work per month due to impairments or treatment.
In an office note dated January 4, 2016, Dr. Sullivan assessed Ms. Schlisner at that time as having 1) asthma 2) asthmatic bronchitis, mildly persistent, with acute exacerbation 3) GERD 4) history of chronic urinary tract infections 5) thoracic back pain 6) thoracic disc disease and 7) low back pain. He went on to state:
Patient is currently disabled. Patient has a number of different medical illnesses that are disabling for her… She is currently unable to carry out regular employment because of her persistent pain and persistent debility from the back pain. This is complicated by the ongoing asthma which is generally persistent. She would be unable to stand for any length of time greater than 15-20 minutes and she would be unable to sit at the same place for 15-20 minutes without having frequent rest breaks for the spasticity. These appear to be a permanent fixture. We would recommend that she continue her current medicines and her current restrictions.
Dr. Diamant[] ordered Ms. Schisner to undergo an MRI of the lumbar spine on March 23, 2016. That exam revealed: 1) L3-4 diffuse disc protrusion with facet generative changes causing a mild acquired central canal stenosis with small neural foramina bilaterally 2) fusion of L4 to S1 with moderate amount of metallic artifact 3) trace fluid in the inferior central spinal cord consistent with minimal syringo-/hydromyelia and 4) mild atrophy of the left kidney with mild-to-moderate hydronephrosis.
At Dr. King's recommendation, Ms. Schlisner began seeing Melissa Quick, APRN on April 18, 2016 for evaluation of her anxiety and depression. She noted increased stress and had been seeing Dr. King twice a week for several months but continued to struggle with symptoms on a daily basis. Her mood was noted to be down, feeling sad, with negative thoughts and high irritability. She reported that she couldn't get out of bed, had to force herself to take her kids to school, didn't wanted to do anything at home, had difficulty with self[-]care, and taking a shower would take everything out of her. She also reported poor concentration and that she had “no memory at all.” Ms. Schlisner reported no interest or enjoyment, not even her kids, and had poor sleep. Ms. Schlisner also reported worse anxiety over the last 2-3 years, worrying that people were watching or judging her. She also had anxiety and worry about her kids, finances, and stuff that never bothered her before, reporting a history of panic attacks, more frequent in the last 6 months.
On October 20, 2016, Ms. Schlisner saw Melissa Quick, APRN for her ongoing depression and anxiety. Ms. Schlisner noted “doing poor, ” indicating she was having more pain as her medication had to be changed due to insurance. She reported having a lot of sadness, no energy or motivation, and getting easily upset some days. Ms. Schlisner said she was still isolating and felt no interest or enjoyment, felt frustrated with her situation and was more just down now, crying and having negative thoughts. Her appetite was noted to be poor, with poor concentration, and sleeping 2-3 hours in chunks on Xanax.
On November 23, 2016 Dr. Sullivan referred Ms. Schlisner to Dr. Kelly Zach at Innovative Pain and Spine Specialists. At that time, she noted a history of persistent mid and low back pain, noting 2 prior back surgeries (thoracic and lumbar fusions). She also noted previous treatment including chiropractic care, braces, nerve blocks, physical therapy, acupuncture, opioids, massage, psychological counseling, TENS unit, medications, multiple epidural injections, and a left L4 transforaminal epidural on 4/12/16. Despite those interventions, Ms. Schlisner continued to have pain. After exam, Dr. Zach assessed Ms. Schlisner as suffering from 1) failed back surgical syndrome 2) lumbar radiculopathy 3) history of lumbar fusion; and 4) thoracic myofascial strain, sequela. Dr. Zach recommended another course of gabapentin and meloxicam, as well as a left L3 transforaminal epidural at that time.
In a December 7, 2016 office note with Dr. Kelly Zach, Ms. Schlisner noted thoracic pain, low back pain and left[-]leg pain. Dr. Zach noted suspected facet arthropathy at the levels above her thoracic fusion due to increased stress. He felt that would be best treated with radiofrequency ablation after a local anesthetic ...

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