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Novotny v. Saul

United States District Court, D. Nebraska

October 8, 2019

NANCY M. NOVOTNY, Petitioner,
ANDREW M. SAUL, [1] Commissioner of the Social Security Administration; Respondent.



         Nancy 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.


         In 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 1.

         II. BACKGROUND[2]

         Petitioner 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.

         A. Medical History

         Upon 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.

         In July 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.

         Petitioner 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.

         Petitioner 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.

         On 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.

         During 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.

         In 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.

         In June 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.

         On 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.

         In 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.

         On 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.

         On 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.

         On 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.

         Also in 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. 108-19.

         Despite 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.

         Throughout 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.

         In June 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. 1449.

         On 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. 1461.

         B. Administrative Hearing

         On 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.

         Petitioner 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.

         The 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.

         Also 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.

         Petitioner's 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.

         Dr. 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 ...

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