Kirchner v. Astrue

Filing 17

MEMORANDUM OPINION AND ORDER denying plaintiff's 6 Motion for Summary Judgment; granting defendant's 9 Motion for Summary Judgment; adopting Magistrate Judge's 13 Report and Recommendation. (Written Opinion). Signed by Judge John R. Tunheim on September 18, 2013. (DML)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
RICKIE ALLEN KIRCHNER,

Civil No. 12-1331 (JRT/SER)
Plaintiff,

v.

MEMORANDUM OPINION
AND ORDER ADOPTING REPORT
AND RECOMMENDATION

CAROLYN W. COLVIN, Commissioner
of Social Security,
Defendant.

Neut L. Strandemo, STRANDEMO SHERIDAN & DULAS, PA, 1380
Corporate Center Curve, Suite 320, Eagan, MN 55121, for plaintiff.
Ana H. Voss, Assistant United States Attorney, UNITED STATES
ATTORNEY’S OFFICE, 600 United States Courthouse, 300 South
Fourth Street, Minneapolis, MN 55415, for defendant.
The Commissioner of Social Security (“the Commissioner”)1 denied plaintiff
Rickie Allen Kirchner’s application for disability insurance benefits from October 2004
to February 26, 2009, under Title II of the Social Security Act (“the SSA”), 42 U.S.C.
§ 423. Kirchner applied for disability insurance benefits due to back injury, narcolepsy,
sleep apnea, and diabetes. This is Kirchner’s second appeal of an Administrative Law
Judge (“ALJ”) decision finding that Kirchner was not disabled within the meaning of the
SSA. The case is now before the Court on the parties’ cross-motions for summary
judgment. In a Report and Recommendation (“R&R”) filed on July 9, 2013, United
1

Carolyn W. Colvin became Acting Commissioner of Social Security on February 14,
2013 and is automatically substituted as the defendant in this action. See 42 U.S.C. § 405(g);
Fed. R. Civ. P. 25(d).

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States Magistrate Judge Steven E. Rau recommended denying Kirchner’s motion,
granting the Commissioner’s motion, and affirming the Commissioner’s decision.
Kirchner filed objections to the R&R, arguing that (1) due to conflicting evidence, it was
incorrect for the Commissioner to conclude that his narcolepsy was controlled by
medication; and (2) Kirchner met all of the requirements of a listed impairment for
chronic venous insufficiency during the relevant period.

This Court reviews the

challenged portions of the R&R de novo under 28 U.S.C. § 636(b)(1)(C) and D. Minn.
L.R. 72.2. Because the Court finds that substantial evidence on the record as a whole
supported the conclusion that Kirchner’s narcolepsy was controlled by medication and
that Kirchner did not meet all the requirements of a listed impairment for chronic venous
insufficiency, it will overrule Kirchner’s objections and adopt the R&R.

BACKGROUND
The facts of this case have been extensively summarized in the R&R (R&R at 212) and in previous orders, see Kirchner v. Astrue, Civ. No. 10-3263, 2011 WL 2555385
(D. Minn. June 2, 2011) report and recommendation adopted in part, rejected in part,
Civ. No. 10-3263, 2011 WL 2555380 (D. Minn. June 28, 2011). (See also Admin. R. at
398-409, Aug. 13, 2012, Docket No. 5.) The Court will summarize only those facts
necessary to understand Kirchner’s objections to the R&R.
Procedural Posture
Kirchner’s application for disability was originally denied on October 16, 2006
(Admin R. at 46-49), and reconsideration was denied on December 22, 2006 (id. 50-52).

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Kirchner requested a hearing, and Administrative Law Judge David Gatto issued his
decision on February 26, 2009. (Id. at 4-13.) The Appeals Council denied Kirchner’s
request for review. (Id. at 1-3.) Kirchner then sought review in this Court which
remanded the action for further development of the record. Kirchner, 2011 WL 2555380,
at *3. The Appeals Counsel vacated the Commissioner’s decision and remanded the case
for rehearing before ALJ Diane Townsend-Anderson. (Admin R. at 487.) On April 3,
2012, the ALJ again issued an unfavorable decision. (Id. at 395-414.) The second ALJ
decision is the final decision of the Commissioner. (Id. at 396.) See 42 U.S.C. § 405(g).
Narcolepsy
It is undisputed that Kirchner suffers from narcolepsy. (See, e.g., R&R at 7-12.)
The Commissioner found that Kirchner’s condition “has been treated with Adderall” and
was “stable and controlled with medication.” (Admin. R. at 405.) The R&R concluded
that “[t]he record as a whole supports the ALJ’s conclusion that Adderall controlled
Kirchner’s narcolepsy.” (R&R at 18.)
During the hearing before the ALJ, the medical expert testified that “the
narcolepsy has been an ongoing and significant problem,” that Kirchner had “failed a
number of typical medications,” and that the “latest [medication] that was tried was the
Adderall.” (Admin. R. at 436.) When asked if the impairment from narcolepsy met or
equaled any listing,2 the medical expert stated, “No I don’t think so.” (Id.)

2

A “listed impairment” is an impairment set forth in SSA regulations, and a claimant is
considered disabled if their impairment “is listed” or is the medical equivalent of a listed
impairment. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). See Part II.A, infra.

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Kirchner’s medical records contain multiple adjustments to Kirchner’s narcolepsy
medications. (See, e.g., id. at 200-201 (adjusting dose of Adderall); id. at 207 (changing
prescription from Adderall to modafenil).) In March 2005, Kirchner asked to have his
Adderall treatment resumed.

(Id. at 210.)

His physician resumed treatment with

Adderall, and “encouraged [him] . . . to call/return for any worsening or new symptoms.”
(Id. at 214-214.)

On several occasions between September 2005 and July 2006,

Kirchner’s treating physician noted that Kirchner’s narcolepsy was “doing well.” (Id. at
222, 229, 238, 266.) In October 2006, Kirchner complained that Adderall was not
controlling his narcolepsy, and his physician discovered that a mistake had been made in
filling his prescription. (Id. at 260-62 (noting that Kirchner “is, unfortunately, on half the
dose that he should be taking”).) On several occasions between December 2006 and
January 2008, Kirchner’s treating physician again noted that Kirchner’s narcolepsy was
“doing well.” (Id. at 293, 301, 327.)
Venous Insufficiency
It is also uncontested that Kirchner suffered from venous insufficiency, a condition
where the veins inadequately circulate the blood, especially from the lower extremities.
(See, e.g., R&R at 5-7.) Kirchner was occasionally diagnosed with stasis dermatitis – a
condition where blood pools in the veins, and blood and fluid leak out into the skin and
other tissues – and ulcerations on his legs caused by the fluid accumulation. (See id.)
There is no evidence in the record that Kirchner suffered from ulcerations that did not
heal after treatment. (See R&R at 16-17 (summarizing evidence); Admin. R. at 404

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(“[T]here is no indication of recurrent or persistent ulceration that did not heal following
at least three month of prescribed treatment.”).)
In 2011, this Court remanded Kirchner’s case for further development because of
a determination that the record was “muddled” with respect to the persistence and
severity of Kirchner’s venous insufficiency.

Kirchner, 2011 WL 2555380, at *3.

Kirchner was invited to submit more evidence either before or at his hearing. (See, e.g.,
Admin. R. at 492 (“If there is more evidence you want the ALJ to see, please give it to us
as soon as possible . . . [or] you may bring it to the hearing.”); id. at 502 (same).)
Kirchner did not submit additional evidence of persistent ulcerations that did not heal
following treatment.

(See generally Admin. R. at 402, 404 (describing the record

evidence of ulceration).)

ANALYSIS
I.

SUMMARY JUDGMENT STANDARD OF REVIEW
Summary judgment is appropriate where there are no genuine issues of material

fact and the moving party demonstrates that it is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a). A fact is material if it might affect the outcome of the suit, and a
dispute is genuine if the evidence is such that it could lead a reasonable jury to return a
verdict for either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A
court considering a motion for summary judgment must view the facts in the light most
favorable to the non-moving party and give that party the benefit of all reasonable
inferences that can be drawn from those facts. See Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986).
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II.

STANDARD OF REVIEW UNDER THE SOCIAL SECURITY ACT
A.

Definition of Disability

“The Social Security program provides benefits to people who are aged, blind, or
who suffer from a physical or mental disability.” Locher v. Sullivan, 968 F.2d 725, 727
(8th Cir. 1992); see also 42 U.S.C. § 1382(a). The claimant has the burden of persuasion
to prove that he or she is qualified for social security benefits. See Harris v. Barnhart,
356 F.3d 926, 931 n.2 (8th Cir. 2004) (citing 68 Fed. Reg. 51153, 51155 (Aug. 26, 2003))
(describing the burdens of persuasion and production under the SSA)). To be eligible for
benefits, an individual’s impairments must be of “such severity that he is not only unable
to do his previous work but cannot, considering his age, education, and work experience,
engage in any other kind of substantial gainful work which exists in the national
economy.” 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
The Commissioner follows a five-step sequential analysis to determine whether a
claimant is disabled, considering (1) whether the claimant is engaged in substantial
gainful activity; (2) whether the claimant has a severe impairment; (3) whether the
claimant’s impairment meets or equals a listed impairment; (4) whether the claimant has
sufficient residual functional capacity to return to his past work; and (5) whether the
claimant can do other work existing in significant numbers in the regional or national
economy. 20 C.F.R. §§ 404.1520(a)(4). A “listed impairment” is an impairment set out
in SSA regulations.

Id. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).

A claimant is

considered disabled if he or she suffers from a listed impairment or a disorder that is the

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medical equivalent of a listed impairment. Id. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii),
404.1526, 416.926.

B.

Substantial Evidence on the Record as a Whole

The Court “will affirm a denial of benefits when the substantial evidence on the
record as a whole supports the ALJ's decision. Minor v. Astrue, 574 F.3d 625, 627 (8th
Cir. 2009); see also 42 U.S.C. § 405(g).

Substantial evidence “is less than a

preponderance, but is enough that a reasonable mind would find it adequate to support
the Commissioner’s conclusion.” McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000).
Reweighing the evidence is not permitted. Vester v. Barnhart, 416 F.3d 886, 889 (8th Cir.
2005). Therefore, even if a claimant’s impairments might support a claim for disability
insurance benefits on de novo review, the Court must affirm if there is substantial
evidence to support the Commissioner’s conclusion to the contrary. See Flynn v. Chater,
107 F.3d 617, 620 (8th Cir. 1997).

This Court cannot reverse the Commissioner’s

decision “merely because substantial evidence exists in the record that would have
supported a contrary outcome.” Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000).
That is, after considering “both evidence that detracts from the ALJ’s decision, as well as
evidence that supports it,” the Court should “not reverse simply because some evidence
supports a conclusion other than that reached by the ALJ.” McDade v. Astrue, – F.3d –,
No. 12-3091, 2013 WL 3868115, at *1 (8th Cir. July 29, 2013).

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III.

KIRCHNER’S OBJECTIONS
Kirchner objects to the R&R’s conclusion that the ALJ correctly determined

Kirchner was not entitled to Social Security benefits. (Admin. R. 398-409.) Kirchner
objects (1) that the ALJ incorrectly concluded that Aderall controlled Kirchner’s
narcolepsy and (2) that the ALJ should have found his disability met or equaled the
listing for chronic venous insufficiency.

A.

Narcolepsy

Kirchner objects to the determination that his narcolepsy was controlled by
medication. Kirchner maintains that the conflicting evidence in the record required the
ALJ to find that his narcolepsy was uncontrolled. But this Court must affirm a denial of
benefits when “the substantial evidence on the record as a whole supports the ALJ's
decision.” Minor, 574 F.3d at 627. Although the Court recognizes that there were times
when Kirchner’s narcolepsy was not controlled by his medication, the majority of the
evidence in the record suggests that the condition was well-controlled most of the time
and supports the conclusion that Kirchner’s symptoms did not reach the level of a
disability.
“A treating physician’s opinion is given controlling weight if it ‘is well-supported
by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in [a claimant’s] case record.’” Tilley v.
Astrue, 580 F.3d 675, 679 (8th Cir. 2009) (quoting 20 C.F.R. § 404.1527(d)(2)).
Kirchner’s treating physician repeatedly described Kirchner’s narcolepsy as “doing well”
during the contested period. Shontos v. Barnhart, 328 F.3d 418, 426 (8th Cir. 2003)
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(“The regulations provide that the longer and more frequent the contact between the
treating source, the greater the weight will be given the opinion[.]”) In addition, the ALJ
relied on the medical expert’s testimony that while Kirchner’s narcolepsy was “an
ongoing and significant problem” it did not rise to the level of a disability. (Admin. R. at
436.)
In sum, the Court finds that the substantial evidence on the record as a whole
supports the ALJ’s determination that Kirchner’s narcolepsy was controlled. The Court
will therefore affirm the ALJ’s determination that Kirchner’s narcolepsy did not rise to
the level of a disability.

B.

Chronic Venous Insufficiency

Kirchner also objects to the R&R on the grounds that his diagnosis of stasis
dermatitis and venous insufficiency with periods of ulcerations should be sufficient to
find that he suffered from a listed impairment or a disorder that is the medical equivalent
of a listed impairment. See 20 C.F.R. § 404.1520(a)(4)(iii). The SSA regulations define
impairment because of chronic venous insufficiency as follows:
Chronic venous insufficiency of a lower extremity with incompetency or
obstruction of the deep venous system and one of the following:
A.

Extensive brawny edema (see 4.00G3) involving at least two-thirds
of the leg between the ankle and knee or the distal one-third of the
lower extremity between the ankle and hip.

OR
B.

Superficial varicosities, stasis dermatitis, and either recurrent
ulceration or persistent ulceration that has not healed following at
least 3 months of prescribed treatment.

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20 C.F.R. § 404, Subpart P, Appendix 1, Listing 4.11. Kirchner argues that because
“there is no evidence that [his ulcerations] did not exist for at least three months even
after . . . treatment,” the ALJ should have determined that his venous insufficiency met or
equaled Listing 4.11. (Pl.’s Objections to R&R at 3, July 23, 2013, Docket No. 15.)
Kirchner bears the burden of proving that his impairment met or equaled the
listing for chronic venous insufficiency. Carlson v. Astrue, 604 F.3d 589, 593 (8th Cir.
2010). “To meet a listing, an impairment must meet all of the listing’s specified criteria.”
Id. (quoting Johnson v. Barnhart, 390 F.3d 1067, 1070 (8th Cir. 2004)). Kirchner’s
assertion that his ulcerations could have existed for at least three months post-treatment
is insufficient. Kirchner did not show – despite ample opportunity to do so – that he
suffered from ulcerations that did not heal following at least three months of prescribed
treatment. The Court, therefore, concludes that the ALJ did not err in finding that
Kirchner did not suffer from ulcerations that met the requirements of Listing 4.11.
Kirchner objects that even if his impairments do not meet the impairments of
Listing 4.11, the ALJ should have found that his impairments equaled those of Listing
4.11. “To establish equivalency, a claimant ‘must present medical findings equal in
severity to all the criteria for the one most similar listed impairment.’” Carlson, 604 F.3d
at 594 (quoting Sullivan v. Zebley, 493 U.S. 521, 531 (1990)) (emphasis in original).
Kirchner does not identify any medical evidence demonstrating that his impairments
were equal in severity to the listed impairment. In sum, the Court finds that substantial
evidence on the record as a whole supports the ALJ’s determination that Kirchner’s
disabilities did not meet or equal the requirements of Listing 4.11.

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CONCLUSION
After carefully considering Kirchner’s objections to the R&R, the Court concludes
that substantial evidence on the record as a whole supported the ALJ’s determinations
that Kirchner’s narcolepsy was controlled by medication and that Kirchner did not meet
all the requirements of a listed impairment for chronic venous insufficiency. The Court
will, therefore, affirm the ALJ’s determination that Kirchner was not disabled as defined
by the Social Security Act, will grant Colvin’s motion for summary judgment, and will
deny Kirchner’s motion for summary judgment.

ORDER
Based on the foregoing, and all the files, records, and proceedings herein, the
Court OVERRULES Rickie Allen Kirchner’s objections [Docket No. 15] and ADOPTS
the Report of and Recommendation of the Magistrate Judge dated July 9, 2013 [Docket
No. 13]. Accordingly, IT IS HEREBY ORDERED that:
1.

Defendant’s Motion for Summary Judgment [Docket No. 9] is

GRANTED.
2.

Plaintiff’s Motion for Summary Judgment [Docket No. 6] is DENIED.

LET JUDGMENT BE ENTERED ACCORDINGLY.

DATED: September 18, 2013
at Minneapolis, Minnesota.

___s/

_____
JOHN R. TUNHEIM
United States District Judge

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