United States District Court, D. Nebraska
NANCY M. NOVOTNY, Petitioner,
ANDREW M. SAUL,  Commissioner of the Social Security Administration; Respondent.
MEMORANDUM AND ORDER
C. BUESCHER UNITED STATES DISTRICT JUDGE
Novotny (“Petitioner”) filed her Complaint
(Filing 1) seeking judicial review of the
Commissioner's denial of her application for disability
insurance benefits and moved this Court for an order
reversing the Commissioner's final decision. Filing
16. The Commissioner filed his motion to affirm the
agency's final decision denying benefits. Filing
20. For the reasons stated below, the Court grants the
Commissioner's Motion and denies Petitioner's Motion.
August of 2015, Petitioner applied for disability insurance
benefits under Title II of the Social Security Act, 42 U.S.C.
§ 401 et seq. (“Title II”) and supplemental
security income under Title XVI of the Social Security Act,
42 U.S.C. § 401 et seq. (“Title XVI”). Tr.
11. Petitioner alleged the disability began on May 6, 2014.
Tr. 11. On September 16, 2015, Petitioner completed her
initial disability report, explaining she was applying for
disability benefits due to fibromyalgia, liver issues,
depression, arthritis in her neck, cervical spine bulging
disc, and left hip problems. Tr. 316. Both claims were denied
initially and on reconsideration. Tr. 11. Following a
hearing, the administrative law judge (“ALJ”)
denied Petitioner's request for disability insurance
benefits under Title II after finding that she was not
disabled as defined by 42 U.S.C. §§ 216(i) and
223(d) prior to December 22, 2017. Tr. 21-22. However, on
December 22, 2017, Petitioner's age category changed. Tr.
21-22. The ALJ granted Petitioner's Title XVI claim
related to supplemental security income, finding that
Petitioner was disabled beginning on December 22, 2017, the
date her age category changed. Tr. 21-22. The Appeals Council
of the Social Security Administration later denied
Petitioner's request for review of the ALJ's
decision. Tr. 1. Accordingly, Petitioner's complaint
challenges only the ALJ's Title II denial of disability
insurance benefits prior to December 22, 2017. Filing
was 47 years old when her insured status expired and 50 years
old when the ALJ determined she was eligible for supplemental
security income benefits. Tr. 293, 295. She had at least a
high school education and was able to communicate in English.
Tr. 20, 317. Petitioner graduated from high school and had
past relevant work experience as a system administrator,
system engineer, and data entry worker. Tr. 317.
referral from her treating physician, Cheryl MacDonald, M.D.,
(“Dr. MacDonald”), Petitioner saw Dr. Eric
Phillips, M.D., (“Dr. Phillips”) a neurosurgeon,
at the Nebraska Spine Center for neck, low back, and leg pain
on May 12, 2014. Tr. 408. At that appointment, Petitioner
informed Dr. Phillips of intermittent neck pain and
occasional left leg pain. Tr. 408. She further stated her
pain ranged from a five out of ten to a ten out of ten. Tr.
410. Dr. Phillips preliminarily determined Petitioner may
have coccydynia, though a CAT scan was needed for further
evaluation. Tr. 412. Dr. Phillips provided Petitioner with a
seat insert to address her current discomfort. Tr. 412.
of 2014, Dr. Phillips ordered and reviewed an MRI of
Petitioner's pelvis, noting the results were inadequate
for evaluation of coccydynia. Tr. 415, 422. As a result, Dr.
Phillips prescribed, and Petitioner began, physical therapy
upon belief that Petitioner's symptoms were residual from
a prior shoulder surgery and not the result of myelopathy or
radiculopathy. Tr. 415. Petitioner started physical therapy
on July 23, 2014. Tr. 967.
returned to Dr. Phillips in August due to continued coccyx
pain, and Dr. Phillips performed an injection which provided
“100% relief of typical discomfort.” Tr. 420.
Shortly thereafter, Petitioner was discharged from physical
therapy but restarted on September 30, 2014, after Dr. Shane
Raikar, M.D., (“Dr. Raikar”) ordered physical
therapy. Tr. 915, 965. Around that same time, Dr. Raikar
ordered an MRI of Petitioner's lumbar spine to help
explain Petitioner's low back and left leg pain, but the
MRI was negative. Tr. 964. A month later in October, Dr.
Raikar injected Petitioner's lumbar spine to help with
the pain but the injection was unsuccessful. Tr. 541, 543.
Petitioner began seeing Rita Fowler, PA, (“Ms.
Fowler”) for pain management at Dr. Raikar's clinic
in November. Tr. 541, 543.
informed Ms. Fowler that sitting, standing, and riding in a
car increased her symptoms but laying down reduced them. Tr.
543. Ms. Fowler noted that Petitioner appeared to be in
“mild distress.” Tr. 544. Based on
Petitioner's statements, Ms. Fowler added Lyrica,
continued Diclofenac, and set up a right sciatic nerve block.
Tr. 544. Later that month, Petitioner was discharged from
physical therapy. Tr. 913.
November 24, 2014, Petitioner went back to Dr. MacDonald for
primary care, and Dr. MacDonald referred Petitioner to
another specialist but noted Petitioner was walking with
“minimal to no limp.” Tr. 665, 667.
December of 2014, Petitioner went back to Dr. Raikar twice
for left sciatic nerve injections and reported pain levels of
eight out of ten. Tr. 546, 548. Petitioner then followed up
with Ms. Fowler for pain management and reported low back and
left leg pain rated at seven out of ten despite the injection
providing “40% sustained relief.” Tr. 550. In
January of 2015, Dr. Raikar performed left intra-articular
hip injections that provided no relief, noting minimal
distress and tenderness in Petitioner's paraspinal lumbar
muscles. Tr. 553, 555, 558.
February of 2015, Petitioner saw Dr. MacDonald, and Dr.
MacDonald noted that Petitioner overall showed no signs of
acute distress. Tr. 656-57. A month later, Petitioner visited
Ms. Fowler for pain management, reported pain at 9/10, and
received lumbar facet joint injections at the left L3-4,
L4-5, and L5-S1 levels from Dr. Raikar. Tr. 560-561, 563.
Petitioner came back to Dr. Raikar on April 14, 2015
reporting short-lived relief from the injections and a pain
level of 8/10. Tr. 567. Dr. Raikar then refilled
Petitioner's medications, ordered physical therapy, and
performed a lumbar steroid injection at the L5-S1 level. Tr.
569-70. In May 2015, Dr. Raikar performed radiofrequency
ablation twice, first of the left L3, L4 median branch nerves
and the L5 dorsal ramus and later on the right nerve roots.
Tr. 572, 574.
of 2015, Petitioner saw Dr. Michael Feely, M.D., (“Dr.
Feely”) a rheumatologist, who noted Petitioner's
fibromyalgia symptoms continued despite medicinal treatment.
Tr. 518. However, Dr. Feely observed Petitioner to have
normal range of motion in her arms and legs, normal gait, and
no joint abnormalities. Tr. 518. Later in June, Petitioner
again saw Ms. Fowler for pain management and reported a pain
level of eight out of ten with no improvement from the
radiofrequency ablation. Tr. 576-77. A month later,
Petitioner informed Ms. Fowler that her pain was at a ten out
of ten level after stopping anti-inflammatory prescription
use due to elevated liver enzyme levels and multiple
unexplained falls. Tr. 577.
August 5, 2015, Petitioner saw Dr. MacDonald because she had
been driving more than usual and had lost the ability to use
her hands for a “couple [of] minutes” while
driving. Tr. 623. Petitioner stated the symptoms occurred
previously at night and now occurred for the first time
during the day, but Dr. MacDonald noted that the problem
“slowly resolved.” Tr. 623. Further, Dr.
MacDonald observed Petitioner to have a normal range of
motion and normal sensation in both wrists along with some
pain during grip strength testing. Tr. 625. As a result, Dr.
MacDonald scheduled an MRI for Petitioner's neck and
brain which, once completed, showed normal levels except for
mild spinal stenosis at the C5-6 level. Tr. 531, 625. Later
in August, Petitioner revisited Ms. Fowler and Dr. Raikar
subsequently performed a cervical epidural steroid injection
at the C6-C7 level. Tr. 587.
September 2015, Petitioner saw Dr. MacDonald for primary
care, and Dr. MacDonald noted that Petitioner was not in
acute distress, had normal gait, and could stand without
difficulty. Tr. 727. Also in September, Petitioner saw Dr.
Raikar for a cervical epidural steroid injection at the C7-T1
level. Tr. 589.
October 8, 2015, Petitioner saw Ms. Fowler for pain
management and reported pain in her neck and left hip at a
level of nine out of ten. Tr. 764. However, Dr. Raikar
observed Petitioner walking into the exam room without
limping or wincing. Tr. 764. A few days later, Petitioner saw
Dr. Jeremy Gallant, M.D., (“Dr. Gallant”) an
orthopedist, concerning her chronic left hip pain. Tr. 777.
Dr. Gallant ordered aquatherapy. Tr. 779. Later in October,
Petitioner's husband completed a report explaining
Petitioner's activities and limitations. Tr. 346-48.
Petitioner also saw Dr. MacDonald but did not voice any
physical complaints. Tr. 749-51. Also in October, state
agency physician Steven Higgins, M.D., noted that Petitioner
could do sedentary work with some postural limits, did not
have any manipulative limits, and could occasionally climb
stairs, ladders and ramps, and could stoop, kneel, crouch,
and crawl. Tr. 85-86.
November 5, 2015, Petitioner returned to Ms. Fowler for pain
management, reporting numbness in her hands, pain in her neck
and left hip, and her failure to start aquatherapy. Tr. 767.
On December 3, 2015, Petitioner saw Dr. Feely and reported
continued problems with fibromyalgia and chronic pain. Tr.
803. However, Dr. Feely documented normal joints, range of
motion, and muscle strength. Tr. 805. That same day,
Petitioner saw Ms. Fowler for pain management, reporting
pain, numbness, and tingling in both arms. Tr. 837. Ms.
Fowler conducted EMG studies which showed results consistent
with mild, borderline carpal tunnel syndrome on the right and
no evidence of cervical radiculopathy. Tr. 838, 840. On
December 7, 2015, Dr. Gallant performed an injection to
Petitioner's left hip which, according to Petitioner, did
not help with the pain. Tr. 771-74, 1249. Shortly thereafter,
Petitioner again began physical therapy to address left hip
pain. Tr. 871. In December, Petitioner saw Dr. MacDonald and
reported some depression, difficulty sleeping, and hip pain.
Tr. 1249. At that visit, Dr. MacDonald monitored
Petitioner's medications, noted Petitioner “overall
[has] continued to improve, ” and told Petitioner to
“keep working on pain management” and water
therapy. Tr. 1251.
December 23, 2015, Petitioner saw Dr. Phillips again, this
time concerning pain between her shoulder blades and hand
numbness. Tr. 822. Dr. Phillips, reviewing an MRI, noted
normal spinal alignment and a C5-6 bulge without significant
compression. Tr. 824. Although Petitioner said she had pain
with almost every posture, Dr. Phillips documented an absence
of limb weakness, atrophy, balance problems, numbness, and
joint swelling. Tr. 822-23. Dr. Phillips recorded that
Petitioner had an excellent and painless range of motion in
her neck with minimal disk bulge at ¶ 5-6 and a positive
Tinel sign at her elbows, suggesting carpal tunnel syndrome.
Tr. 823-24. As such, Dr. Phillips recommended that Petitioner
1) use elbow splints, 2) avoid placing her elbows on tables
or car rests, and 3) change her neck and arm position while
sleeping. Tr. 824.
December 2015, state agency physician Jerry Reed, M.D.,
(“Dr. Reed”) reviewed the evidence to date,
including the notes and related documentation from each
previously mentioned doctor and specialist, and affirmed Dr.
Higgins's earlier assessment that Petitioner could do
sedentary work with some postural limits, did not have any
manipulative limits, could occasionally climb stairs, ladders
and ramps, and could stoop, kneel, crouch, and crawl. Tr.
Dr. Reed's conclusion and Dr. MacDonald's note of
continued improvement, Petitioner reported increasing hip
pain since October 2015 and hand numbness on her Disability
Report appeal form shortly thereafter. Tr. 365. Following up
on her hand numbness, Petitioner saw Manjula Tella, M.D.,
(“Dr. Tella”) in early January of 2016, and Dr.
Tella ordered EMG and nerve conduction studies. Tr. 834, 836.
On January 10, 2016, Petitioner saw Dr. Gallant and reported
left hip pain and a shingles flare up after her last hip
injection. Tr. 1066-68. Dr. Gallant encouraged her to try
aquatherapy. Tr. 1066-68. A month later, Petitioner saw Ms.
Fowler for pain management after stopping water therapy
“due to increased pain and transportation
issues.” Tr. 800. Another month passed and
Petitioner's physical therapist discharged her from
aquatherapy as Petitioner was no longer benefiting from the
program and had five cancellations in less than three months.
Tr. 868. Petitioner's discharging physical therapist
noted that Petitioner rated her pain an eight or nine out of
ten but reported that she was “able to ride in vehicles
and participate in community activities” and
“able to run her day care.” Tr. 868.
the rest of March 2016, Petitioner saw Ms. Fowler for pain
management and Dr. Gallant for left hip pain. Tr. 797, 1047.
She also saw Dr. Raikar who noted spinal tenderness, normal
muscle strength and tone, and normal mood, attention span,
and concentration. Tr. 797, 798. On April 8, 2016, Petitioner
underwent a left hip MRI that showed Petitioner's left
hip was normal, unremarkable, and identified no cause for
left hip pain. Tr. 1030, 1031. During a visit in May, Dr.
MacDonald noted that Petitioner had a normal gait. Tr. 1190.
2016, Petitioner reported unchanged symptoms and difficulty
sleeping. Tr. 789, 1153. In Petitioner's August visit to
Dr. Raikar, he noted Petitioner had lost weight and was
trying to be more active. Tr. 1284. He also noted she had
lumbar tenderness, no radicular symptoms, and no neurological
deficits despite Petitioner's reported pain level of
eight out of ten. Tr. 1283. Petitioner's September and
November appointments with Dr. Raikar produced nearly
identical reports and notes. Tr. 1285, 1288-89. In December
of 2016, Carmen Magistro, P.A., observed Petitioner to have
normal gait and station. Tr. 1306. Petitioner saw Dr.
MacDonald for primary care in January of 2017 and a new
orthopedist in February. Tr. 1377. The orthopedist ordered a
left hip MRI “to see if there is advancing degenerative
changes in the hip or if she would benefit from a repeat
arthroscopy.” Tr. 1477. A follow-up MRI in March
suggested impingement but did not show muscle strain. Tr.
April 3, 2017, Petitioner saw Dr. Kimberly Turman, M.D.,
(“Dr. Turman”) for evaluation of her left hip and
MRI analysis. Tr. 1333. Dr. Turman reviewed Petitioner's
treatment history and her hip, noting that Petitioner
displayed no acute distress and had grossly intact strength
with minimal discomfort despite claims of continuing pain.
Tr. 1333. Dr. Turman also noted that Petitioner's neck
was non-tender, and she had full strength in her arms and
legs. Tr. 1336, 1337 Dr. Turman recommended an arthroscopy
and subsequently performed the surgery. Tr. 1333, 1464. On
June 5, 2017, Petitioner returned to Dr. Turman after her
left hip arthroscopy and reported some soreness but overall
improvement and no more shooting pain. Tr. 1465. Petitioner
returned to Dr. Turman in July and reported she was
“back to normal activities, ” “overall
doing well.” Tr. 1461. Dr. Turman noted that Petitioner
was ambulating with regular gait, demonstrating good
strength, and “overall doing fairly well.” Tr.
September 28, 2017, the ALJ held the administrative hearing.
Tr. 35. During questioning, Petitioner stood for a few
minutes due to left hip pain. Tr. 46. She explained that she
had surgery in 2009 and 2017 on her left hip but was no
longer in physical therapy or taking medication related to
her hip condition. Tr. 46-47. Petitioner noted she
experienced “fibro pain” in her tailbone, neck,
shoulders, hands, and feet, and had tried physical therapy,
aquatherapy, and walking for her pain. Tr. 50. Further,
Petitioner explained “any type of steroid”
injections designed to help her hip caused her shingles to
act up. Tr. 51. Petitioner informed the ALJ that she fell a
lot while walking because her left leg sometimes did not
respond. Tr. 50.
explained she could only sit for a maximum of thirty minutes
before needing to stand or lie down for an hour, and she
needed to lie down for several hours each day. Tr. 52.
Additionally, Petitioner's pain affected her ability to
concentrate and sleep, and caused her hands to go numb from
time to time. Tr. 61. To manage her pain, Petitioner applied
for approval from her insurance to receive spinal cord
stimulation treatment. Tr. 56. Her typical day involved
taking her daughter to school, alternating between lying down
and walking throughout the day, and picking her daughter up
from school. Tr. 52-53. Because of her inability to do the
activities she used to do, Petitioner experienced symptoms of
depression and preferred to “just stay home and do
nothing.” Tr. 54. Overall, Petitioner stated that her
health declined since filing her application. Tr. 59.
vocational expert then testified and noted that an individual
with Petitioner's limitations could perform sedentary
unskilled labor including jobs such as document preparer,
telephone quotations clerk, and charge account clerk. Tr. 66.
The vocational expert explained the jobs would still be
available with “an additional break for five minutes
per hour in addition to regularly scheduled break.” Tr.
67. However, the expert opined that a break of five minutes
every half an hour would preclude work. Tr. 67. Lying down
for two hours during a work day or missing three days of work
a month would also preclude competitive work. Tr. 69.
before the ALJ was a letter from Dr. MacDonald submitted
September 6, 2017. Tr. 1454-55. In August of 2017,
Petitioner's attorney sent Dr. MacDonald a letter posing
questions about Petitioner's abilities Tr. 1457-58. In
that same letter, Petitioner's attorney also informed Dr.
MacDonald that Petitioner had stopped working in 2012 due to
pain, slept poorly, had difficulty with her hands, and needed
to frequently lie down. Tr. 1457. Further, Petitioner's
attorney told Dr. MacDonald that Petitioner felt she could
only sit for 30 minutes before shifting position. Tr. 1457.
attorney asked if Petitioner could sit for only thirty
minutes before needing to stand or lie down; if she needed to
frequently rest, recline, or nap during the day; and if she
had been unable to work full time since May 6, 2014. Tr.
1454-55, 1457-58. Dr. MacDonald responded “yes.”
Tr. 1454-55, 1457-58. Dr. MacDonald stated Petitioner could
miss at least three workdays a month because if she exerted
herself, she could not be active for one to two days
afterward. Tr. 1455.
MacDonald also generally noted that her clinic saw Petitioner
every three to six months, and several specialists had been
involved in her care Tr. 1454. Dr. MacDonald stated that
after reviewing her records, she thought Petitioner had not
been able to work since 2012 ...