United States District Court, S.D. Ohio, Western Division, Dayton
KRISTIN N. BARTUNEK, Plaintiff,
NANCY A. BERRYHILL, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant.
DECISION AND ENTRY
L. OVINGTON UNITED STATES MAGISTRATE JUDGE
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.
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).
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.
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).
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).
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.
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.
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.
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.
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.
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.
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.
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.
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 ...