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Bartunek v. Berryhill

United States District Court, S.D. Ohio, Western Division, Dayton

August 24, 2017

KRISTIN N. BARTUNEK, Plaintiff,
v.
NANCY A. BERRYHILL, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant.

          DECISION AND ENTRY

          SHARON L. OVINGTON UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         Plaintiff Kristin N. Bartunek brings this case challenging the Social Security Administration's denial of her application for period of disability and Disability Insurance Benefits. She applied for benefits on July 2, 2013, asserting that she could no longer work a substantial paid job. Administrative Law Judge (ALJ) Emily Ruth Statum concluded that she was not eligible for benefits because she is not under a "disability" as defined in the Social Security Act.

         The case is before the Court upon Plaintiffs Amended Statement of Errors (Doc. #16), the Commissioner's Memorandum in Opposition (Doc. #13), Plaintiffs Reply (Doc. #15), and the administrative record (Doc. #7).

         Plaintiff seeks a remand of this case for payment of benefits or, at a minimum, for further proceedings. The Commissioner asks the Court to affirm ALJ Statum's non-disability decision.

          II. Background

         Plaintiff asserts that she has been under a "disability" since December 29, 2012. She was thirty-five years old at that time and was therefore considered a "younger person" under Social Security Regulations. See 20 C.F.R. § 404.1563(c). She has a high school education. See Id. § 404.1564(b)(4).

         A. Plaintiff's Testimony

         Plaintiff testified at the hearing before ALJ Statum that she cannot work because of severe pain:

I have nerve pain in my leg ~ left leg and both arms. It's a shooting, stabbing, sharp pain. I also have pain in my lower -- mid to lower spine that's very sharp pain. My left foot, a lot of the times it feels like the bones are broken when I try to walk on it, and my left thigh gets real bad, sharp pains like someone's stabbing a knife in and pulling down. ... My hip, every time I try to take off my pants or go to the bathroom or go to sit down or roll over in bed, it's a very sharp pain. I also get the pain in my left butt cheek and my whole left leg is numb. It doesn't have full feeling in it. My left arm has now gotten a lot of muscle weakness as well and I have a difficult time holding things in my left arm. When I'm driving, I have bad joint pain in both hands and nerve pain in my wrists and fingers, so I switch off hands because holding onto the wheel for too long hurts, so I have to switch hands when I'm driving.

(Doc. #7, PageID #s 806-07).

         On a scale from one to ten, Plaintiff stated that her lower back pain is "[a]bout a seven" on a daily basis and her left leg pain is eight. Id. at 808-09. She experiences the greatest pain relief when she is lying down and thus, spends a lot of time lying down. Id. at 810. Her pain is worst in the morning and at night. Id. at 811.

         In 2012 or 2013, Plaintiff participated in a spinal cord simulator trial and it made her back pain worse. Id. "The next move they want to do is implant a pain pump." Id. at 812. At the time of the hearing, Plaintiff was taking medication for pain. Id. Her treating pain specialist, Dr. Dannini, prescribes Percocet, amitriptyline, and Flexeril. Id. Dr. Rudd prescribes Cymbalta. Id. She experiences significant side effects: "Cymbalta, I have dizziness a lot when I stand and I'm also extremely tired constantly.... Flexeril ... also makes me really tired and the Percocet keeps me awake and also gives me ... a little bit of nausea, and then the [amitriptyline], it puts me to sleep." Id. at 813. Plaintiffs medication "take[s] the edge off but does not take all of her symptoms away. Id. at 821.

         Plaintiff has very restless sleep because she is constantly moving and, "[e]very time I move in bed, my hip hurts really bad, and my feet... get very, very cold, like they're in an ice box, and so that kind of keeps me awake, and then the pain in my toes and in my leg ...." Id. at 811.

         The problems in her hands started almost one year before the hearing. Id. at 809. She has constant numbness in her hands and left arm, constant pain in her knuckles, and intermittent nerve pain. Id. at 817. As a result, she has "difficulties holding anything for too long of a period, especially smaller things like pens and even [helping my son] get dressed sometimes can be a hassle." Id. at 809. The heaviest thing she can lift is a pot. Id. at 817.

         Plaintiffs leg pain improved after surgeries in 2009. Id. at 814. But, in 2011, she was involved in a car accident, and the pain "came back in full force." Id. at 814-15. After the accident, she was off work for six months because of the back problems and because she was pregnant. Id. at 816. She then attempted to work for a couple months but had to stop because her back pain was so bad. Id. At the time, Plaintiff worked as a registered nurse. Id. at 805.

         Plaintiff lives with her husband and three-year-old son. Id. at 804. She has a driver's license and is able to drive. Her mom helps her take care of her son on days that he is not in school. Id. at 809. "I'm either at her house or she's at my house." Id. at 810. Her mom cooks for him, picks him up, puts him in the car seat, and anything else that requires lifting. Id. When Plaintiff is unable to get up and do anything, her mom takes complete care of him. Id.

         Plaintiff described her daily activities:

[I]t depends on the days that I have my son in school. I wake up -- well, he wakes up and comes in my bed and I put the TV on for him until I can physically feel well enough to get out of bed, which is about an hour after he comes in, and then we go downstairs and I make him oatmeal or cereal for breakfast and then we lay down on his little couch and watch his cartoons while he eats his breakfast, and then I get his clothes for him and he now can put them on himself, so he puts on his clothes. I help him with his shoes and then I take him to school and then I generally come home and lay in the recliner or in my bed and watch TV or that's pretty much it, watch TV. And then on the days that I do have him and he's not in school, it's the same morning routine and I will either take him down to my parents' house or my mom will come up around 9:30 or 10:00 in the morning to help me with him, and she will usually take him outside and we have a swing set out back for him and they'll play and I'll just watch. And I take naps generally.

Id. at 819-20. Her mom stays until around 6:30 p.m., when her husband gets home. Id. at 820. When Plaintiff does not have her son, she sleeps during the day-usually from whenever she falls asleep in the morning until five o'clock. Id. at 815.

         Plaintiff is unable to cook meals that require standing for over ten minutes. Id. at 815. Her husband usually cooks and does most of the grocery shopping. Id. at 815-17. Plaintiff is not able to clean or do laundry. Id. at 820-21. Generally, her mom or her husband's mom do both. Id. Plaintiff has a computer she uses for email and Facebook. Id. at 821. She has to use a toilet chair because of the severe pain in her back. Id. at 815. And, because Plaintiff is unable to lift her son into his car seat, she puts a stool in the car so he can climb into the car and then into the car seat. Id. at 817.

         Plaintiff estimated that she can sit for ten to fifteen minutes before she has to stand up because of pain. Id. at 808. She can stand in one place for five to ten minutes before she has to sit down. Id. But, she usually has to put her weight on her right side and she sometimes ...


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