United States District Court, D. South Dakota, Western Division
MEMORANDUM OPINION AND ORDER AFFIRMING THE DECISION
OF THE COMMISSIONER
E. SCHREIER UNITED STATES DISTRICT JUDGE.
Patricia Nills, seeks review of the decision of the
Commissioner of the Social Security Administration denying
her claim for disability insurance benefits (SSDI) under
Title II of the Social Security Act, 42 U.S.C. § 423.
Docket 17. The Commissioner opposes the motion and urges the
court to affirm the denial of benefits. Docket 18. For the
following reasons, the court affirms the decision of the
filed an application for SSDI benefits on June 16, 2014,
alleging disability since March 30, 2012. AR 280-86. The
Commissioner denied her claim initially on December 12, 2014,
and upon reconsideration on April 10, 2015. AR 145, 151.
Nills then appeared with counsel before Administrative Law
Judge (ALJ) Lloyd E. Hartford on July 19, 2016. See
AR 74-91 (transcript of hearing). ALJ Hartford issued a
partially favorable opinion on August 25, 2016. AR 120-34. On
September 12, 2017, the Appeals Council remanded the August
2016 ALJ decision for additional consideration of Nills's
ability to perform past relevant work and the transferability
of Nills's skills to other means of employment. AR
141-44. On June 19, 2018, Nills then appeared with counsel
before ALJ Michael A. Kilroy. See AR 35-73
(transcript of hearing). ALJ Kilroy issued an opinion
affirming the denial of benefits on June 29, 2018. AR 7-21.
The Appeals Council denied Nills's request for review on
October 12, 2018. AR 1-6. Thus, Nills's appeal of the
Commissioner's final decision is properly before the
court under 42 U.S.C. § 405(g).
was born on October 26, 1949. AR 43, 92. Nills is not
married, and at the time of the hearing, was living with her
son. AR 78, 281. Nills has a high school diploma and has had
on-the-job training as a certified nurse assistant (CNA) and
medical technician. AR 66. Nills went to college for three
years but never received a degree. AR 79. She has held
several jobs including working as a custodian, CNA, medical
technician, and office manager. AR 44, 46.
has a history of several medical impairments including
obesity, hypertension, hyperlipidemia, a left shoulder
rotator cuff tear, degenerative joint disease of the right
hip, and sacroiliitis. See AR 96, 933. Although
Nills's hyperlipidemia and hypertension have not
worsened, Nills has received extensive care for her left
shoulder and right hip. See AR 478-1058.
March 30, 2012, Nills fell while working as a custodian at
Black Hills State University (BHSU). AR 510, 1097. The day of
her fall, Nills presented to Regional Health in Spearfish and
stated her shoulder was a 10 out of 10 for pain. AR 510.
Nills was prescribed medication and given various work
limitations. AR 512. Nills's shoulder pain continued to
worsen, and on April 10, 2012, an MRI showed a rotator cuff
tear in her left shoulder. AR 507-10. Dr. Richard Little
performed surgery on Nills's left shoulder on June 13,
2012, to repair her rotator cuff. AR 976-78. At the time of
her injury, Nills was working both as a CNA at Dorsett Home
and a custodian at BHSU. AR 52, 376. Nills did not return to
work as a CNA after her injury, and worked on light duty at
BHSU. AR 52-54. Nills returned to work part-time at BHSU as a
custodian in October of 2012 following her surgery.
See AR 54, 313-36.
returning to work as a custodian, Nills began her shoulder
rehab process. On October 11, 2012, Nills had a follow-up
appointment with Dr. Little where she reported that there was
a spot on her shoulder that was painful, but that each month
her shoulder was improving. AR 489. On November 8, 2012,
Nills had another follow-up appointment with Dr. Little where
she reported that “her arm is doing great” and
that her arm was just a little weak. AR 486. Nills also
reported positive improvements and a decrease in her shoulder
pain during her physical therapy sessions at Black Hills
Physical Therapy. AR 519, 524, 529, 536.
Nills's pain at times improved, subsequent imaging showed
a recurrent rotator cuff tear, which prompted a second
surgery. AR 478, 672. Nills had the second surgery on her
left shoulder performed by Dr. Clarke Duchene at Black Hills
Orthopedic and Spine on June 11, 2013. AR 683-85. Following
this second surgery, Nills again continued with rehab and
returned to work. AR 687-712. On October 21, 2013, Dr.
Duchene found that Nills was making significant progress with
motion and pain in her left shoulder. AR 667. Dr. Duchene
assessed that Nills could actively forward flex her left
shoulder 90 degrees and that Nills was grossly
neurovascularly intact. Id. Nills reported that she
still had some pain but reported good days as well.
Id. On November 11, 2013, Nills was seen at Queen
City Medical Center and reported she was “feeling
well” but “still with arthritic pain.” AR
590. Nills continued to improve during her rehab process, and
on December 16, 2013, Dr. Duchene noted that Nills could
forward flex 90 degrees and passively flex to 180 degrees
with pain improving. AR 665. By January 20, 2014, Dr. Duchene
believed he was “seeing progress” and that there
was also “improvement in therapy.” AR 663.
15, 2014, Dr. Gary Childers, a provider at Regional Health,
reported that Nills was “healthy-appearing, ” in
“no acute distress, ” and was “ambulating
normally.” AR 589. A few months later, on September 22,
2014, Nills was seen at Orthopedic Institute for another
evaluation of her left shoulder. AR 889. The exam showed that
Nills's cervical spine range of motion was stiff but did
not refer pain to the arm. Id. An x-ray showed
Nills's joint spaces intact. Id. Dr. Keith
Baumgarten at Orthopedic Institute was able to externally
rotate Nills's arm to 30 degrees with a positive lag
sign. Id. But an MRI showed attenuation of
Nills's rotator cuff with a probable recurrent tear.
Id. Although Orthopedic Institute called Nills on
November 11, 2014, to follow-up and discuss options for her
shoulder, Nills did not seek further treatment for her left
shoulder. AR 888. Nills also failed to reschedule physical
therapy appointments and was discharged from Black Hills
Physical Therapy's care on September 15, 2014. AR 686.
Nills did not seek further follow-up treatment with her
providers concerning her shoulder pain from June of 2015
until after her date of last insured. See AR 1041.
from her left shoulder pain, Nills has also received care for
hip-related pain. In 2012, x-ray results showed only a mild
degenerative change of Nills's hips. AR 483. Nills,
however, continued to experience pain in her hips. On January
28, 2014, Nills complained of hip pain at a visit with Dr.
Christopher Dietrich. AR 648. Nills began a series of hip
injections to treat her symptoms. See, e.g., AR 645,
679, 681, 891. A CT scan was performed in April of 2014 and
showed “moderate to severe right”
femoroacetabular arthropathy and SI joint arthritis. AR 676.
Nills continued with physical therapy and at a session on
April 17, 2014, Nills reported that “she was nearly
pain free.” AR 691. Nills had another hip injection on
October 9, 2014, at Spearfish Regional Surgery Center. AR
914. At a follow-up appointment on October 23, 2014, Nills
stated that her pain was 0 out of 10 and that she was
“very pleased with her current status.” AR 912.
Doctors noted that Nills did not have any significant pain or
exacerbations, that she was able to ambulate and transition,
and that her ability to go from sitting to standing improved.
Nills continued to receive hip injections and reported
significant improvement in pain, Nills symptoms continued. AR
636-85. An x-ray of Nills's right hip on November 12,
2014, showed bone-on-bone arthritis. AR 890. Nills had her
hip replaced on March 13, 2015. AR 941. A follow-up
appointment on March 23, 2015, found that Nills had smooth
internal and external rotation, was neurovascularly intact,
and that her gait was very antalgic and shuffling. AR 1047.
By April of 2015, Nills was “doing well” with a
“full range of motion” in her hip. AR 1044. In
May of 2015, Nills reported at her follow-up visit that she
was “very satisfied” with the results of her
procedure and that her hip felt good most days. AR 1043.
Nills was released back to work with no restrictions for her
right hip. Id. Nills did not seek further treatment
for her hip until after her date of last insured. AR 1041-82.
From September of 2013 to March of 2015, Nills worked
part-time as a medication aide at Garden Hills Assisted
Living. AR 57-58, 287-93.
the second administrative hearing, the ALJ heard testimony
from Nills and a vocational expert. AR 37-73. Nills,
represented by counsel at the hearing, testified about her
education, work experience, and her hip and shoulder pain
during the relevant time period. AR 43-67. Nills testified
that her most recent jobs included work as a custodian, CNA,
medical technician, and office manager. AR 44, 52-59. Prior
to the alleged onset date, Nills testified that she had also
previously held jobs as a CNA for Crook County Medical
Services, an office manager at Wyoming Farm Bureau
Federation, and an office manager for Mulligan Trailer Sales.
AR 61-62, 65.
testified that she worked as a custodian at BHSU when she was
injured at work on March 30, 2012. AR 52. At the time, she
was also working as a CNA at Dorsett Home. Id. This
job ended when she was injured. Id. Nills continued
to work at BHSU after the injury until the first surgery on
her left shoulder in June of 2012. AR 53. Nills did not work
again at BHSU until October of 2012, when she returned back
to light-duty work. Id. Nills worked as a custodian
at BHSU until June of 2013, when Nills had a second shoulder
surgery. AR 54. Nills then became a medical aide at Garden
Hills in September of 2013. AR 56. Nills continued to work
until her hip surgery in March of 2015. AR 57-58. Nills
testified that she has not worked since her hip surgery.
also testified about the pain in her hip and shoulder. AR
59-63. Nills stated that she cannot lift with her left arm or
lift her left arm above her shoulder. AR 59. Nills noted that
her arm did get better for a while but that it has continued
to “go downhill” since her second surgery. AR
60-61. Nills also testified that she cannot touch the top of
her head with her left arm and that she has no grip in her
left hand. AR 59.
Black served as the vocational expert at the hearing. AR 64.
The ALJ posed two hypotheticals. AR 67-69. For the first
hypothetical, the ALJ asked whether an individual with
similar past work history, age, and educational background as
Nills, who could stand and walk for two hours, sit for six
hours, with additional lifting and moving limitations, could
perform any of Nills's past jobs. AR 67. The vocational
expert stated that such an individual could work as an office
manager. Id. The ALJ asked if there would be any
other work using the first hypothetical with transferrable
skills. AR ...