United States District Court, D. Nebraska
DUSTIN E. ZUHLKE, 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
(“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).
Procedural History and Introductory Information
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.
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.
Claimant's Relevant Testimony at the ALJ Hearing
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.
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.
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.
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
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.
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.
said he tried to obtain a CDL license to haul grain in May
2016, but due to medications he did not qualify. Id.
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.
Claimant's Relevant Medical History
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
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.
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.”
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.
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
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.
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.
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