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Dunn v. Saul

United States District Court, D. Nebraska

October 2, 2019

KIMBERLY DUNN, Plaintiff,
v.
ANDREW SAUL, Commissioner of the Social Security Administration, Defendant.

          MEMORANDUM AND ORDER

          RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE

         Plaintiff Kimberly Dunn brings this action under Title II of the Social Security Act, which provides for judicial review of “final decisions” of the Commissioner of the Social Security Administration. 42 U.S.C. § 405(g) (Westlaw 2019).[1]

         I. NATURE OF ACTION & PRIOR PROCEEDINGS

         A. Procedural Background

         Dunn filed an application for Title II disability benefits on January 12, 2016, alleging disability beginning on June 16, 2015. (Tr. 236.[2]) The claims were denied initially and on reconsideration. Following a December 7, 2017, hearing (Tr. 100-131), an administrative law judge (“ALJ”) found on March 19, 2018, that Dunn was not disabled as defined in the Social Security Act. (Tr. 25.) On September 20, 2018, the Appeals Council of the Social Security Administration denied Dunn's request for review. (Tr. 1.) 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. ALJ's Determination

         Following the five-step sequential analysis[3] 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) Dunn may have engaged in substantial gainful activity since the alleged onset date, but “[f]uther development on this issue would not serve judicial economy and there is no need to postpone these proceedings to obtain further evidence on this point, as there exists a valid basis for denying the claimant's application . . . .” (Tr. 13.)

         (2) Dunn has two severe impairments-degenerative disc disease and bilateral carpal tunnel syndrome-and neither meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526).

         (3) Dunn has the residual functional capacity (“RFC”) to perform light work as defined in 20 C.F.R. § 404.1567(b) with additional limitations:

She can perform no climbing of ladders, ropes, or scaffolds. She can perform no more than occasional balancing, stooping, kneeling, crouching, and crawling. She can have no concentrated exposure to extreme cold temperatures, vibration, and hazards such as unprotected heights. She has no ability to drive. She has a need to alternate every 30 minutes between sitting and standing.

         (4) Dunn cannot perform her past relevant work as a bus driver, but there are jobs in the light, unskilled category that exist in significant numbers in the national economy that Dunn can perform, including a routing clerk, mail sorter, and marking clerk.

         (5) Dunn was not under a disability within the meaning of the Social Security Act from June 16, 2015, through the date of the ALJ's decision.

         C. Medical Factual & Opinion Evidence

         The material medical and opinion evidence related to Dunn's physical impairments is undisputed and is described by the ALJ, in relevant part, as follows.[4]

1.Plaintiff's Testimony Regarding Her Symptoms
The claimant is a 52-year-old woman who alleged that she is unable to work due to low back pain, herniated and bulging disc, and walking with crutches. The claimant stated that she experiences back pain, along with tingling and muscle spasms in right leg. She alleged she has to change positions often due to her pain, and she stated that she can sit for only 5 to 10 minutes before needing to change positions. She testified that she uses a cane all of the time, except for when she uses her walker for going longer distances. She also stated that her sleep i[s] interrupted by having to change positions constantly, and she only gets four to five hours of sleep per night. She stated the side effects to her medication make her tired, dizzy, and itchy.
At the hearing, the claimant also alleged that she is unable to work due to carpal tunnel syndrome in the bilateral hands, which is worse in the left, dominant hand. She alleged that this condition has worsened over the years, and it is now to the point that she can barely lift anything.
. . . The claimant reported that she is able to drive short distances and she can care for her day-to-day personal needs, although she is a little bit slower. She testified that she is able to prepare some simple meals and do light housework such as dusting.

(Tr. 17-18, 21.)

2.Plaintiff's Degenerative Disc Disease
. . . The evidence indicates that the claimant stopped working at her job as a bus driver on the alleged onset date. The day after the alleged onset date, on June 17, 2015, the claimant presented to her primary care physician, M. Olubunmi Dada, MD, with complaints of low back pain that radiated down the right leg. Dr. Dada observed that the claimant had antalgic[5] gait and some tenderness in the lumbosacral spine, and he prescribed medication and referred the claimant to physical therapy. At follow-up appointments on June 30, 2015, and July 20, 2015, the claimant continued to report back pain. Dr. Dada again observed tenderness, and he prescribed percocet and referred the claimant to a spinal surgeon.
On July 21, 2015, the claimant presented to J. B. Gill, MD, at Nebraska Spine Center for her low back and right leg pain. She reported at that time that she had tried physical therapy and percocet with moderate relief. Upon examination, Dr. Gill observed the lumbosacral spine exhibited tenderness on palpation, extension caused pain, and positive straight-leg raise testing on the right in the sitting position. He also noted some decreased response to tactile stimulation of the right leg, but he found 5/5 strength throughout, and although he noted she was using crutches to ambulate, he did not document any gait abnormalities upon examination. X-rays of the lumbar spine performed at that time showed only “slight” decreased disc height at ¶ 3-4, with no spondylolisthesis or scoliosis noted. An MRI of the lumbar spine showed L3-4 foraminal disc herniation that was compressing the right L3 nerve root. Dr. Gill provided the claimant with a transforaminal epidural steroid injection. The claimant received another epidural injection on September 1, 2015.
At a follow-up appointment with Dr. Gill on October 16, 2015, the claimant reported that although the injections had not provided relief for her low back pain, they provided about 80 percent relief of her leg pain. Dr. Gill made the same findings upon examination at that visit, and back surgery was planned. The claimant presented for a preoperative appointment on November 10, 2015, at which time Dr. Gill provided her a brace. A CT of the lumbar spine showed a single erosion superior facet laterally on the left sided L5-S1, but normal lumbar alignment without central or foraminal stenosis.
During this period, the claimant also continued to treat with Dr. Dada approximately once per month from July 2015 through November 2015. He continued to observe tenderness and documented that the claimant was utilizing crutches.
On December 2, 2015, the claimant underwent right L3-4 microendoscopic discectomy. Two months after surgery, on February 4, 2016, the surgeon Wendy Spangler, MD, noted that the claimant had “done very well, ” and although she continued to have pain in the right buttock region, she had resolution of the right lower extremity pain. Upon examination, Dr. Spangler observed that the claimant ambulated with a non-spastic gait; could heel raise and toe raise without difficulty bilaterally; had some tenderness in upper right buttock region, but no tenderness along lumbar spinous processes or paravertebral musculature; straight leg raise tests were negative bilaterally; had good lower extremity strength bilaterally; stood from a seated position without any difficulty; and walked with a normal gait. Dr. Spangler noted the claimant had not done physical therapy yet, and she referred her to physical therapy.
On March 17, 2016, three months after surgery, the claimant reported to Dr. Spangler that she was engaged in physical therapy, and although she still noted some pain, she felt it was improving her symptoms. Dr. Spangler documented that the claimant had “mild” diffuse paraspinal tenderness and “slightly” antalgic gait, but she had full strength in the lower extremities, and she appeared well and in good spirits.
The claimant also followed up with Dr. Dada in February 2016 and March 2016, and she reported to him in March 2016 that she was “beginning to feel better.” Dr. Dada noted at that time that the claimant was no longer using a walking cane or crutches to assist with walking, and she ...

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