Mindy S. v. Kijakazi

Decision Date22 July 2022
Docket Number7:21-CV-5008
PartiesMINDY S., Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security; Defendant.
CourtU.S. District Court — District of Nebraska

MEMORANDUM AND ORDER AFFIRMING COMMISIONER'S DETERMINATION

Brian C. Buescher, United States District Judge.

Plaintiff Mindy S.[1] seeks judicial review of Defendant Commissioner of the Social Security Administration's denial of her application for disability insurance benefits. Filing 1. Mindy S. has moved for an order reversing the Commissioner's decision. Filing 18. In response, the Commissioner filed a motion to affirm the Commissioner's final decision denying disability benefits. Filing 19. For the following reasons, the Court grants the Commissioner's motion and denies Mindy S.'s motion.

I. BACKGROUND

Mindy S. was forty-four years old when she filed for disability insurance benefits with the Social Security Administration and forty-five at the time of her hearing. Filing 11-2 at 11 26. She has at least a high school education, Filing 11-2 at 20, and has worked as a pharmacy technician, cashier checker and front desk receptionist within the last fifteen years. Filing 11-2 at 19-20.

A. Procedural History

On November 11, 2019, Mindy S. filed a claim for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C §§ 401 et seq., alleging a disability-onset date of August 21, 2019. Filing 11-9 at 2-3. Mindy S.'s initial disability report alleges the following conditions limit her ability to work: scoliosis, depression, asthma, fibromyalgia, arthritis, and osteoporosis. Filing 11-10 at 6. The Social Security Administration initially denied her claim on May 8, 2020, Filing 11-4 at 2-5, and denied it upon reconsideration on August 21, 2020. Filing 11-4 at 10-11. Mindy S. then requested an administrative law judge (ALJ) review that denial. Filing 11-4 at 19-20. On January 12, 2021, the ALJ held an administrative hearing, Filing 11-2 at 26-51, and denied her claim on February 8, 2021. Filing 11-2 at 8-21. Mindy S. appealed the ALJ's decision to the Social Security Appeals Council, which found no reason to change the ALJ's decision and sent a notice of its denial of Mindy S.'s request for review on August 17, 2021. Filing 11-2 at 2-4. Mindy S. timely filed this present action requesting this Court review the denial of her claim for disability insurance benefits. Filing 1; see 42 U.S.C. § 405(g).

B. ALJ Hearing

A hearing before an ALJ was held on January 12, 2021. Filing 11-2 at 26. At the hearing, Mindy S. testified that she is suffering from issues with her spine, including scoliosis, arthritis, and osteoporosis. Filing 11-2 at 31-32. In May 2020, she underwent surgery on her back to address these issues. Filing 11-2 at 31-32. She reported improvements with her back after the surgery until she fell down around August 2020. Filing 11-2 at 33-34. Mindy S. testified that she had a doctor's appointment with Dr. Anant Kumar, M.D., soon after her fall but did not inform him of the fall during the appointment. Filing 11-2 at 34. Since falling, Mindy S. alleges she has significant issues with her back that inhibit her ability to stand, walk, or sit for prolonged periods of time. Filing 11- 2 at 31-33. She testified that she can only lift five to ten pounds and cannot do household chores. Filing 11-2 at 36, 39. She can dress herself but cannot tie her shoes, as it requires her to bend over too far. Filing 11-2 at 39. She can drive herself but gets uncomfortable driving long distances. Filing 11-2 at 37. She sits in a recliner most of the day due to limited mobility. Filing 11-2 at 36. While sitting, Mindy S. alleges a need to shift her position every two to five minutes due to back pain. Filing 11-2 at 39. Finally, Mindy S. testified that she is suffering from depression, anxiety, is argumentative, and has trouble concentrating. Filing 11-2 at 31, 40-42.

Jeffrey Magrowski, a vocational expert (VE), testified as to the availability of jobs suitable for Mindy S. Filing 11-2 at 41-49. The VE testified that Mindy S.'s past relevant work included light, semi-skilled work as a “cashier checker” (DOT 211.462-014);[2] medium, semi-skilled work as a “pharmacy technician” (DOT 074.382-010); and sedentary, semi-skilled work as a “front desk receptionist” (DOT 237.367-038). Filing 11-2 at 44, 47. The VE noted a hypothetical individual with Mindy S.'s age and experience, who is capable of performing a full range of light work with occasional interaction with the general public, could not perform any of the jobs from Mindy S.'s past relevant work. Filing 11-2 at 47. The VE added that there are jobs available in the national economy for this same hypothetical individual, such as a “bakery helper” (DOT 524.687-022); an “office helper” (DOT 239.567-010); and a “mail clerk” (DOT 209.687-026).

Next, the VE opined that work existed in the national economy for the same hypothetical individual who is limited to sedentary lifting capacity with an ability to stand or walk six hours in an eight-hour workday; has no concentrated exposure to fumes, gases, chemicals, vibration, hazards such as unprotected heights, or close proximity to dangerous moving mechanical parts; and is limited to occasional interaction with the general public. Filing 11-2 at 48. Examples of available jobs for this hypothetical individual the VE provided include an “assembler” (DOT 713.687-018); a “scanner document preparer” (DOT 249.587-018); and a “packer of medical supplies” (DOT 559.687-014). For these occupations, the VE stated the number of jobs available is 35,000, 15,000, and 5,000 respectively. Filing 11-2 at 48-49.

The VE also noted there would be no competitive light work available for an individual requiring a special accommodation because of the need to alternate between sitting and standing every five to ten minutes. Filing 11-2 at 49. Finally, the VE testified that employers generally tolerate a few unexcused absences and one excused absence per month, but after three months the employee would need to either stop missing work or have a special accommodation to remain employed. Filing 11-2 at 49-50.

C. Medical Records and Evidence

On May 5, 2019, Mindy S. fell on her left knee and suffered a subchondral fracture of the left fibular head. Filing 11-2 at 14. On June 20, 2019, Mindy S. had a follow-up where she reported improvement. Filing 11-12 at 10.

In August 2019, Dr. Irinel Stanciu, M.D., diagnosed Mindy S. with age-related osteoporosis with current pathological fracture. Filing 11-13 at 18. On August 27, 2019, Mindy S. visited Dr. Kumar complaining of severe back pain that had gradually worsened over the course of five years. Filing 11-12 at 2. Mindy S. rated the pain at eight out of ten in the lower back and five out of ten in the right buttock, and said the pain radiated to her right upper thigh. Filing 11-12 at 2. She also complained of thoracic pain, which worsened with twisting movements of the torso. Filing 11-12 at 3. When comparing x-rays taken that day to x-rays from 2016, Dr. Kumar reported worsening scoliosis and a loss in bone density. Filing 11-12 at 3. Dr. Kumar noted surgical treatment was needed due to worsening scoliosis, but that surgery could only be performed safely when her bone density improved. Filing 11-12 at 4.

On October 4, 2019, Mindy S. visited Dr. Stanciu for her osteoporosis. Filing 11-13 at 3. During the appointment, Dr. Stanciu noted Mindy S.'s lumbar spine was deformed and scoliotic and that her bone density was very low. Filing 11-13 at 3. A trabecular bone score showed very poor bone quality. Filing 11-13 at 3. Mindy S visited Dr. William Fattig, M.D., twice in October and November of 2019 where she complained of sleep problems and fatigue. Filing 11-13 at 46-48, 50-51. During both visits, Dr. Fattig made note of Mindy S.'s migraine headaches and determined that a prescription of Trokendi lessened their severity. Filing 11-13 at 46-48, 50-51.

A test in January 2020 showed a significant increase in bone density in comparison to a previous exam from December 2017. Filing 11-14 at 63. Mindy S. visited with Dr. Kumar on March 5, 2020. Filing 11-14 at 59. Mindy S. rated her pain at a seven out of ten, and said her pain was five out of ten on a good day and ten out of ten on a bad day. Filing 11-14 at 62. Dr. Kumar diagnosed Mindy S with spondylolisthesis at the L3-L4 level, kyphosis due to osteoporosis, facet degeneration of lumbosacral region, facet degeneration of lumbar region, lumbar degenerative disc disease, flat back syndrome, acquired scoliosis, acquired kyphosis, and low back pain. Filing 11-14 at 60. In his assessment, Dr. Kumar noted the plan to go ahead with surgery to address these issues. Filing 11-14 at 60.

On March 8, 2020, Mindy S. was admitted to the hospital due to abdominal pain, nausea, and vomiting. Filing 12-5 at 9. The next morning and while still in the hospital, she suffered from a severe headache. Filing 12-5 at 14. Mindy S. informed the hospital staff that her physician prescribed Topiramate for headaches in January 2020, and she thought it was helping. Filing 12-5 at 14. However, she did not have the prescription refilled in March 2020. Filing 12-5 at 14. The hospital discharged Mindy S. in good condition on March 9, 2020. Filing 12-5 at 9-12.

On May 4, 2020, Mindy S. “underwent a T8-L4 kyphoplasty for multiple compression fractures, L2-L4 right XLIF interbody fusion and L2-4 posterior spine fusion to correct her scoliosis and spondylolisthesis.” Filing 12-1 at 51. At a follow-up appointment with Dr. Kumar on May 26, 2020, Mindy S. reported that [h]er preoperative pain ha[d] completely resolved and she [was] pleased with the results and her pain [was] much improved.” Filing 12-1 at 51. Dr. Kumar mentioned...

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