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Nills v. Saul

United States District Court, D. South Dakota, Western Division

November 15, 2019

PATRICIA NILLS, Plaintiff,
v.
ANDREW M. SAUL, COMMISSIONER OF SOCIAL SECURITY, Defendant.

          MEMORANDUM OPINION AND ORDER AFFIRMING THE DECISION OF THE COMMISSIONER

          KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE.

         Plaintiff, 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 Commissioner.

         PROCEDURAL HISTORY

         Nills 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).

         FACTUAL BACKGROUND

         Nills 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.

         Nills 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.

         On 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.

         After 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.

         Although 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.

         On May 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.

         Apart 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. Id.

         Although 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.

         ADMINISTRATIVE HEARING

         During 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.

         Nills 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. Id.

         Nills 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.

         Karen 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 ...


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