Novotny v. Saul

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

8:18-CV-437

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

October 8, 2019

MEMORANDUM AND ORDER

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.

I. PROCEDURAL HISTORY

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. BACKGROUND²

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...