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Zuhlke v. Berryhill

United States District Court, D. Nebraska

July 31, 2019

DUSTIN E. ZUHLKE, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security; Defendant.

          MEMORANDUM AND ORDER

          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 (“Commissioner”). Plaintiff, Dustin Zuhlke, appeals a final determination of the Commissioner denying his application for Social Security benefits. This court has jurisdiction under 42 U.S.C. § 405(g).

         I. BACKGROUND

         A. Procedural History and Introductory Information

         On March 23, 2015, Mr. Zuhlke filed an application for disability benefits, alleging that he suffered from a disability beginning on October 7, 2014. His application was denied initially and upon reconsideration. Following a May 9, 2017 hearing, an administrative law judge (“ALJ”) denied benefits. Filing No. 9, Social Security Transcript (“Tr.”) at 38-75. On April 26, 2018, the Appeals Council denied review, and the ALJ's decision stands as the final decision of the Commissioner. Id. at 1-5. Zuhlke seeks review of the ALJ's order denying benefits.

         Plaintiff is now forty years old. He has previous relevant work experience as a garbage collection manager, hardware store laborer, truck driver, semi-truck driver, construction worker, building repairer, and feed miller. Id. at 30. Zuhlke has a high school education and can communicate in English. Id.He started a gun business out of his home which provided a gross income of $1, 200 in 2016. Id.at 28, 56. At the time of Zuhlke's application for benefits, he contended that he was unable to work because he has two to three migraines per week resulting from a fall at work in May 2013. Id. at 177.

         B. Claimant's Relevant Testimony at the ALJ Hearing

         At the hearing on May 9, 2017, Zuhlke testified that he and his wife are the parents of five young children. Id. at 45. His wife works part-time cleaning a bank for two hours each evening. Id. Since graduating from high school, Zuhlke has held numerous jobs of brief duration. After high school, he worked for farmers and ranchers sporadically for six years. Id. at 45-46. Following this, Zuhlke characterized himself as a self-employed contract hire who worked “helping other farmers.” Id. at 46. Subsequently, he obtained a CDL commercial license and worked for his brother in a farming and truck driving business. Id. at 46-47. Zuhlke then did maintenance on his uncle's hog farm for approximately one year. Id. at 47. Following this, he worked at Kaylor Parkston Grain where he drove an eighteen-wheeler truck and maintained grain facilities. Id. Zuhlke thereafter was employed by OMNI Builders for approximately one year, for whom he helped build agricultural buildings. Id. at 48. After this, he was an operations manager with Waste Connections, a garbage company. Id. Zuhlke then spent a year as a feed mill manager for Christensen Farms and Feedlots. Id. at 48-49. Zuhlke testified that he was hired to work as an appliance installer at William Crowder in 2013, but “in between training [he] was tearing down a building, ” at which point he fell from a ladder and was injured. Id. at 49-50.

         After the injury and consequent surgery, Zuhlke stated that he went back to work at William Crowder doing light duty work from August 2013 until January 2014, at which point he had another surgery. Id. at 50. In March 2014, Zuhlke again returned to William Crowder; this time he maintained the building and worked in a hardware store. Id. at 50-51. Zuhlke testified that his employment at William Crowder terminated in June 2014. Id. at 50. Additionally, from 2013-2015, Zuhlke worked “on the side” for Excel Development Group, a property management company, doing light work such as painting, mowing, and patching holes in walls. Id.at 52. Zuhlke stated that, when able, he helped on his brother's grain farm in exchange for help with his wife's car payment. Id. at 54.

         Zuhlke testified that he was not looking for work at the time of the hearing. Id. As such, he maintained that “it's very hard to gain employment because my migraine headaches are unpredictable, and they're long-lasting sometimes.” Id. at 54-55. At the time of the hearing, Zuhlke's only employment was the operation of a gun business out of his home; income from the business was insubstantial and not enough to support a family with five young children. Id. at 56. Thus, the family is on food stamps and Medicaid. Id. at 56-57. Zuhlke stated that he makes a house payment of $853 per month with his wife's income, which was approximately $1, 500 per month. Id. at 57.

         Regarding physical limitations, Zuhlke testified that he cannot perform repetitive tasks, as they bring on migraines. Id. He stated that there were days where the migraines would interfere with doing even part-time work. Id. at 58. There were instances when he could not complete a task for several days because of crippling migraines. Id. Additionally, Zuhlke contended that he dealt with tingling in his hands. Id. at 58-59. The tingling was often a precursor to migraines. Id. at 59. At the onset of such tingling, Zuhlke took medications to prevent an oncoming migraine, but the medications were often ineffective. Id. The tingling resulted in problems with gripping or manipulating objects - such as holding a pen or trying to write. Id.

         Zuhlke also discussed his depression, which “really took off” after the migraines began and he could not find work. Id. Zuhlke stated that his depression worsened when he was not able to support his family or take care of his home. Id. at 60. Zuhlke testified that he takes Zoloft for depression and Wellbutrin, Propranalol, Toradol, Maxalt, Zomeg, Relpax, and Phenergan for migraines. Id. at 60-61. These medications were prescribed by Dr. Adams, a neurologist Zuhlke first saw in March of 2015. Id. at 61. Zuhlke saw another neurologist, Dr. Asaad, in Norfolk, Nebraska. Dr. Asaad said that Botox for migraines is an option, and she encouraged Zuhlke to do physical therapy, but Zuhlke testified that his neurosurgeon, Dr. Bowdino, advised against physical therapy. Id. at 61-63.

         When asked about the frequency of the headaches, Zuhlke responded that they “happen whenever they want.” Id. at 63. The migraines occurred two to three times per week; sometimes they began and woke him up in the middle of the night. Id. A typical migraine, Zuhlke testified, lasted about thirty-six hours. He stated that these particularly severe migraines typically occurred at least once or twice per week, and the pain kept him awake because the medications did nothing to ease the pain. Id. at 63-64. Zuhlke testified that his wife's parents cared for the children when migraines left him incapable. Id. at 64.

         Zuhlke said he tried to obtain a CDL license to haul grain in May 2016, but due to medications he did not qualify. Id.

         When asked about the source of his migraines, Zuhlke responded that he never had migraines prior to the work accident. Id. at 65. He testified that the migraines result in problems remembering things, concentrating, and comprehending. Id. One of the medications made him foggy, and thus unable to concentrate. Id. at 65-66. Additionally, the after effects of the migraines sometimes resulted in memory loss, as Zuhlke stated that he “had entire conversations after [he] had a migraine, and [he did not] remember them.” Id. at 66. When asked to describe the quality of his sleep, Zuhlke testified that he often spent entire nights without sleep - as sleep escaped him, he laid awake and tried to figure out what he was going to do. Id.

         C. Claimant's Relevant Medical History

         Zuhlke's health records indicate that he visited the emergency room at Avera St. Anthony's Hospital in O'Neill, Nebraska on May 15, 2013. Id. at 289. He arrived at the emergency room via squad, on a backboard and with a neck collar in place, for evaluation of neck pain. Id. Zuhlke stated that he was at work at William Crowder, on top of a ladder attempting to remove a nail from a roof when he lost his balance and fell off the ladder. Id. He hit the right side of his head on the cement. Id.On May 16, 2013, Dr. Bradley Bowdino and Dr. Joseph Cheattle performed an operation on Zuhlke to repair a type 2 odontoid fracture. Id. at 413. The procedure performed was the placement of an odontoid screw fixation in the C2 vertebra. Id.

         On August 7, 2013, Zuhlke visited the Avera Medical Group clinic for evaluation of pain in his right shoulder blade. Id.at 341. He also stated that he developed muscle spasms lateral to his upper thoracic spine and medial to his scapula. Id. Hydrocodone provided little improvement. Id. Dr. Matthew Winkelbauer, Zuhlke's general practitioner, provided Flexeril 10 mg to be taken every eight hours. Id. at 342.

         On August 14, 2013, Dr. Bowdino noted that a CT scan of the repair of Zuhlke's odontoid fracture showed incomplete healing. Id. at 397. On December 11, 2013, Dr. Bowdino stated that Zuhlke's 2013 operation failed to fuse the odontoid, and a bone growth stimulator provided no significant change. Id. at 396. Thus, Bowdino recommended that Zuhlke undergo a C1-C2 fusion with “C1 lateral mass screws and laminar screws at C2.” Id.

         On December 23, 2013, Zuhlke presented at the Avera Medical Group clinic for evaluation of mid thoracic back pain. Id. at 335. The pain was just left of his mid thoracic spine. Id. Zuhlke maintained that the pain increased when he bent, twisted, or pulled his shoulders back. Id. Tylenol did not provide symptom relief, so Dr. Winkelbauer again provided Flexeril 10 mg to be taken every eight hours. Id. at 335-336.

         On January 8, 2014, Zuhlke went to the Avera Medical Group clinic for a pre-operative surgery visit. Id. at 332. He was scheduled to have a posterior cervical fusion with Dr. Bowdino on January 13, 2014, secondary to nonhealing of his C2 fracture, which was originally sustained in May 2013. Id. at 332-333. On January 13, 2014, because of his non-healed type II odontoid fracture, Zuhlke underwent a surgical procedure performed by Dr. Bowdino, which consisted of (1) lateral mass instrumentation of CI and C2 lamina instrumentation bilaterally; and (2) placement of structural hip graft for arthrodesis C1-2. Id. at 405.

         On February 26, 2014, Dr. Bowdino described Zuhlke's cervical fusion with a hip autograft and insisted that Zuhlke, as a whole, was doing well, as his incisions were healing, and his pain was under control. Id.at 394. On April 9, 2014, Dr. Bowdino described an episode following the 2013 fusion surgery in which Zuhlke had severe pain on the right side of his neck while doing extensive work. Id. at 388.

         On March 26, 2014, Zuhlke presented at the Avera Medical Group clinic for a follow-up of his neck pain. Id. at 324. The nurse's notes reveal that Zuhlke returned to work on March 1, 2014, at William Crowder's, and had not been doing any heavy lifting. Id. The pain was in the lateral aspect of the right side of his neck and on the top of his shoulder, and he that reported Flexeril provided no relief. Id. Zuhlke also reported taking Hydorcodone four times daily. Id.

         On June 26, 2014, Dr. Bowdino stated:

[Zuhlke] underwent both an anterior and posterior stabilization of his cervical spine. He is now doing well. He has good relief of his pain. He is neurologically intact and has made good progress over the past two months with regard to his work. He was been very active and busy at work. I am going to plan to release him to full work with a maximum lifting of 150 pounds.

Id. at 386. On August 5, 2014, Dr. Bowdino stated that as of June 26, 2014, Zuhlke was at maximum medical improvement. Id. at 384. Further, regarding permanent impairment rating, he was at 12% of the body as a ...


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