Anderson v. Berryhill et al
Filing
28
ORDER denying 24 Motion for Summary Judgment; granting 25 Motion for Summary Judgment(Written Opinion) Signed by Magistrate Judge Elizabeth Cowan Wright on 9/11/2019. (TMA)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Daniel A.,
Case No. 17-cv-4322 (ECW)
Plaintiff,
v.
ORDER
Andrew Saul, Commissioner of Social
Security
Defendant.
This matter is before the Court on Plaintiff Daniel A.’s (“Plaintiff”) Motion for
Summary Judgment (Dkt. 24) (“Motion”) and Defendant Commissioner of Social
Security Andrew Saul’s (“Defendant”) Cross-Motion for Summary Judgment (Dkt. 25)
(“Cross-Motion”). Plaintiff, proceeding pro se, filed this case seeking judicial review of
a final decision by Defendant denying his application for disability insurance benefits.
For the reasons stated below, Plaintiff’s Motion is denied, and Defendant’s Cross-Motion
is granted.
I.
BACKGROUND
Plaintiff filed an application for benefits under Title II of the Social Security Act
(42 U.S.C. §§ 416(i) & 423) on June 17, 2014, claiming that he has been disabled since
March 1, 2011 due to back and neck problems. (R. 25, 413). 1 Plaintiff’s application was
denied initially (R. 340, 353-55) and on reconsideration (R. 350-51, 363-64). Plaintiff
1
The Administrative Record can be found at Docket No. 19.
requested a hearing before an administrative law judge (R. 367), which was held on April
15, 2016 before Administrative Law Judge (“ALJ”) Mary M. Kunz. (R. 25.) Plaintiff
was represented by legal counsel at the hearing before the ALJ. (R. 312.) The ALJ
issued an unfavorable decision on May 4, 2016. (R. 25, 33.)
Following the five-step sequential evaluation process under 20 C.F.R. §
404.1520(a), the ALJ determined that Plaintiff last met the insured status requirements
for the Social Security Act on December 31, 2011. 2 (R. 27.) The ALJ went on to
determine that Plaintiff had not engaged in substantial gainful activity since April 1,
2011, the alleged onset date, through the last date of insured of December 31, 2011. (Id.)
At step two, the ALJ determined that Plaintiff had the following severe
impairments at the date last insured: asthma, degenerative disc disease of the lumbar
spine with L5-Sl laminotomy and discectomy on April 27, 2011 and revision on October
12, 2011. (Id.) The ALJ determined that Plaintiff’s other physical impairments were not
severe during the period Plaintiff was insured:
Many other impairments in the record were not diagnosed and thus not
established as medically determinable impairments until long after the date
last insured. Specifically, the claimant testified to the inability to do his past
work because of neck pain and left arm tingling. Imaging in April 2012
confirmed moderate degenerative disc disease, but no evidence of nerve root
involvement. (Exhibit 1F, at pages 13- 14) The record indicates that he did
not seek evaluation of these symptoms until April 4, 2012, four months after
the date last insured. At that time, the physical examination indicated he had
tenderness to palpation and decreased range of motion of the cervical and
lumbar spine but negative straight leg raising, normal strength and sensation,
and normal tendon function in the hand. (Exhibit 1F, at pages 9-10) There
was little follow-up of this condition until March 5, 2013, when the claimant
complained to Dr. Santos of neck and arm pain for the past three months and,
2
Plaintiff does not dispute his date last insured. (Dkt. 24 at 2.)
2
for the first time, the physical examination indicated he had decreased
sensation over the ulnar aspect of the left forearm. (Exhibit 1F, at page 11)
Unlike in March 2013, there are no clinical findings or even complaints of
symptoms to support a finding that this was a severe impairment on or prior
to the date last insured. (See Exhibit 4F, at pages 6-7, 9-10, Exhibit 5, at
page 25).
(R. 27-28.)
At the third step, the ALJ determined that through the date of last insured Plaintiff
did not have an impairment that met or medically equaled the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 28.)
At step four, after reviewing the entire record, the ALJ concluded that Plaintiff had
the following residual functional capacity (“RFC”): “perform light work, as defined in 20
CFR 404.1567(b), 3 except further limited by no more than occasional bending, stooping,
kneeling, crouching, crawling, or climbing, and should not involve exposure to high
concentrations of air pollutants.” (R. 28.) Based on this RFC, the ALJ determined that
3
Pursuant to the Social Security regulations, light work is defined as follows:
Light work involves lifting no more than 20 pounds at a time with frequent
lifting or carrying of objects weighing up to 10 pounds. Even though the
weight lifted may be very little, a job is in this category when it requires a
good deal of walking or standing, or when it involves sitting most of the time
with some pushing and pulling of arm or leg controls. To be considered
capable of performing a full or wide range of light work, you must have the
ability to do substantially all of these activities. If someone can do light
work, we determine that he or she can also do sedentary work, unless there
are additional limiting factors such as loss of fine dexterity or inability to sit
for long periods of time.
20 C.F.R. § 404.1567(b).
3
Plaintiff was capable of past relevant work as a telemarketer and phone order clerk,
which the vocational expert (“VE”) testified that a hypothetical individual with the
determined RFC could perform, especially in light of the fact that the positions are
sedentary in nature. 4 (R. 32.)
Accordingly, the ALJ found Plaintiff not disabled. (R. 32.)
Plaintiff requested review of the decision. (R. 1.) The Appeals Council denied
Plaintiff’s request for review, which made the ALJ’s decision the final decision of the
Commissioner. (Id.) Plaintiff then commenced this action for judicial review. The
Court has reviewed the entire administrative record, giving particular attention to the
facts and records cited by the parties. The Court will recount the facts of record only to
the extent they are helpful for context or necessary for resolution of the specific issues
presented in the parties’ motions.
II.
RECORD
On November 9, 2010, Plaintiff underwent an assessment for physical therapy.
(R. 231.) Plaintiff reported an onset of the lower back pain approximately 15 years
earlier with lifting. (Id.) He seemed to get over that in time, but noted that flare-ups
4
Pursuant to the Social Security regulations, sedentary work is defined as follows:
Sedentary work involves lifting no more than 10 pounds at a time and
occasionally lifting or carrying articles like docket files, ledgers, and small
tools. Although a sedentary job is defined as one which involves sitting, a
certain amount of walking and standing is often necessary in carrying out job
duties. Jobs are sedentary if walking and standing are required occasionally
and other sedentary criteria are met.
20 C.F.R. § 404.1567(a).
4
began about three years later, which seemed related to a desk job and decreased activity
level. (Id.) Flare-ups were occurring more often and would last for 1-2 weeks. (Id.)
They were triggered by activities such as yard work. (Id.) Plaintiff reported feeling pain
daily, even between flare-ups. (Id.) His last big flare-up occurred approximately six
months earlier. (Id.) The flare-ups would limit bending. (Id.) The pain was rated at 0 to
5 out of 10. (Id.) He denied radicular symptoms. (Id.) The pain was described as
aching and it was intermittent. (Id.) Plaintiff’s lifting was limited to about 60 pounds.
(Id.) Plaintiff avoided full bending and had some pain dressing. (Id.) Plaintiff was
prescribed with manual therapy and exercises to improve flexibility, strength, and
function. (R. 233.) Plaintiff did not schedule the prescribed physical therapy sessions.
(R. 235.)
On April 1, 2011, Plaintiff reported to an urgent clinic with back pain. (R. 166.)
Plaintiff noted that the symptoms began a “day(s) ago . . . .” (Id.) His history of back
pain was reported as “recurrent self limited episodes of low back pain in the past.” (Id.)
The pain was exacerbated by bending and changing position. (Id.)
On April 14, 2011, Plaintiff had an MRI performed on his lumbar spine. (R. 39.)
The imaging report noted that Plaintiff had “[l]ow back pain, sciatica. 5 Less than sixweek history.” (Id.) The MRI showed that the lumbar vertebral bodies were in normal
anatomic alignment, but that there were multilevel degenerative changes, most notably at
L5-S1, with a disc protrusion causing moderate to severe narrowing of the spinal canal
5
Sciatica: “Pain in the lower back and hip radiating down the back thigh into the
leg . . . .” STEDMAN’S MEDICAL DICTIONARY, 1731 (28th ed. 2006).
5
and impinging upon the bilateral descending S1 nerve roots. (R. 39-40.) Plaintiff was
diagnosed with left L5-S1 herniated nucleus pulposus and left S1 radiculopathy. (R. 43.)
He had exhausted nonoperative measures and continued to have unspecified significant
symptoms. (R. 44.)
On April 22, 2011, Plaintiff saw Jacqueline A. Geissler, M.D. for a surgery
consult. (R. 655.) Plaintiff had reported a one-month history of severe back pain which
was exacerbated by movement with pain going down his left side to the plantar aspect of
his foot and his heel. (Id.) Plaintiff represented that his pain was constant and became
worse with certain movements or positions, although there was no position which
relieved or improved this pain. (Id.) Plaintiff rated his back pain at a level of 9 or 10.
(Id.) His past medical or surgical history made no mention of neck problems. (Id.)
Plaintiff had pain exacerbated with movement in general, a nonantalgic gait, he was able
to heel walk, toe walk, and squat and rise with good execution, although it was
uncomfortable. (R. 656.) Given the MRI and his symptoms, Dr. Geissler believed it
would be reasonable to proceed with a surgical intervention. (Id.)
On April 27, 2011, Plaintiff had the following surgical procedures performed on
outpatient basis: microscopic laminotomy of left L5-S 1; microscopic partial discectomy,
left L5-S1; and microscopic left S1 nerve foraminotomy. (R. 43.) The post-operative
plan was for Plaintiff to mobilize as tolerated, he was sent home with Percocet, which he
was to take as needed for pain, and was to be seen back in the clinic in six weeks’ time.
(R. 44.)
6
Plaintiff’s pain had resolved, however, he had a reoccurrence of pain in August
2011. (R. 55.) On August 30, 2011, Plaintiff had another MRI related to low back pain
and possible left leg radiculopathy. (R. 46.) The MRI showed a large recurrent central to
slightly left central L5-S1 disc herniation resulting in severe central and left subarticular
stenosis, 6 a moderate bilateral foraminal stenosis, and stable L4-L5 degenerative disc
disease with moderate central and bilateral foraminal stenosis. (R. 47.)
On September 16, 2011, Plaintiff saw Edward Santos, M.D., related to his back
pain. (R. 48.) Plaintiff represented that he had been doing well since his surgery until a
few weeks prior to his visit, when he started to have recurrent low back pain. (Id.) While
the MRI showed a recurrent herniation, Plaintiff represented that his pain was
manageable with 1-2 Vicodin per day. (Id.) Dr. Santos found as follows: “I spoke with
Daniel and given his mild picture, I have advised continued nonoperative treatment. If
upon discontinuation of the Vicodin and with more activities his pain escalates, then I
have recommended performing a revision microdiskectomy. He will call us over the next
few days and update us and we will then plan accordingly.” (R. 48-49 (emphasis
added).)
As the result of continuing symptoms and the exhaustion of nonoperative
measures, Plaintiff underwent a revision left L5-S 1 laminotomy, revision left
microscopic L5-S1 microdiskectomy, and revision left L5-S1 nerve decompression on
October 12, 2011. (R. 52-53.) Dr. Santos provided that the post-operative plan was to
6
Stenosis: “A stricture of any canal or orifice.” STEDMAN’S MEDICAL DICTIONARY,
1833 (28th ed. 2006).
7
have Plaintiff mobilize as tolerated. (Id.) He was restricted from bending, lifting more
than ten pounds, and twisting for six weeks. (Id.)
Plaintiff next saw a medical provider on December 13, 2011. According to Jess
Brehmer, M.D.:
Since the surgery in 10/2011, the patient reports he has been doing well. He
has been on unemployed even before his 1012011 surgery thus, he states he
has not been doing “anything.” The patient states he has not been working.
He also reports that he is not doing anything in the way of physical activities
including yard work or any shoveling just because he has been afraid and
cautious to reinjure his back. Ultimately though, he is doing well. He is not
having any issues with pain, denies any radicular symptoms, denies any
weakness in the lower extremities and denies any numbness or tingling.
(R. 61.) It was noted that the radiography showed “normal alignment” and only mild
degenerative disk disease at L5-S1. (R. 61-62.) The physical examination showed that
Plaintiff’s strength was 5/5 in his lower extremities; he had an intact sensation from the
L3-S1 dermatomes bilaterally; his straight leg raise was negative; and he was able to
walk without difficulty. (R. 61.) The assessment and plan for Plaintiff was as follows:
We discussed with Mr. [A.] that at this point, there are no changes noted on
his imaging studies. Clinically, he looks to be doing well. From our
standpoint, he can advance his activities as tolerated. We did discuss that he
is likely deconditioned with regards to his musculature; thus, we recommend
he do exercises as he previously had been taught at physical therapy. He
does have the list of these exercises and is willing to go forth and start these
up. We did discuss with him the importance of practicing good back health
with regards to posture. From this standpoint, he can be doing activities as
tolerated and we can see him back in clinic on an as needed basis.
(R. 62.) Both Dr. Brehemer and Dr. Santos agreed on this plan. (Id.)
8
On December 13, 2011, Dr. Santos reviewed an MRI from the same date.
(R. 645.) Dr. Santos’s assessment was “Normal alignment, no acute bony changes
noted, mild degenerative disc disease, L5-S1.” (Id.)
During the hearing before the ALJ, Plaintiff admitted that he went back to
work after the second surgery as follows:
Q
Okay. Right, and then after you had the second one, why couldn’t
you have gone back to work?
A
Well I actually did that’s when my neck started to hurt and we did
some -- I believe we did physical therapy in 2012.
Q
Okay.
A
I don’t know. I can’t --
Q
Okay.
A
-- recall.
(R. 317 (emphasis added).) 7
Between May 2011 and October 2011, Plaintiff’s Physician’s Assistant (“PA”),
Matthew Luther, issued opinions that Plaintiff was suffering from lower back pain and
checked a box representing that “Patient will not be able to perform any employment in
7
Plaintiff asserts that this line of questioning was a “personal attack” by the ALJ.
(Dkt. 24 at 3.) In order for a plaintiff to prove that an ALJ exhibited unacceptable
conduct towards him, he is “required to show that the ALJ’s behavior, in the context of
the whole case, was ‘so extreme as to display clear inability to render fair judgment.’”
Perkins v. Astrue, 648 F.3d 892, 903 (8th Cir. 2011) (quoting Rollins v. Massanari, 261
F.3d 853, 858 (9th Cir. 2001)) (citation omitted). The Court concludes that this line of
questioning regarding why Plaintiff did not go back to work in December 2011 was
appropriate given the positive reports by his medical providers during this period,
especially given the limited period that Plaintiff was insured.
9
the foreseeable future.” (R. 537-44.) PA Luther did not set forth how the chronic lower
back pain affected Plaintiff’s ability to work. In addition, there was no mention of
Plaintiff suffering from any neck pain during this period. (Id.) PA Luther only first
mentioned that Plaintiff could not work due to his neck pain in November 2012. (R.
545.)
On April 4, 2012, Plaintiff sought care for cervical pain. (R. 524.) Plaintiff
presented with both back and neck pain. (Id.) Plaintiff characterized the pain as
moderate and severe aching, discomfort, and increased pain with activity. (Id.) Plaintiff
rated the pain at 6/10 at its worst and 2/10 at its best. (Id.) Plaintiff’s muscles were
tender on palpation in the cervical and lumbar regions. (R. 525.) Flexion and extension
were decreased. (Id.) Leg raises produced a negative result, and Plaintiff’s strength and
nerve sensation were normal. (Id.) Plaintiff’s x-rays showed a loss of cervical lordosis 8
and a prior lumbar surgery. (Id., R. 528.) Tilok Ghose, M.D., assessed Plaintiff with
chronic cervical radiculopathy, neck pain, and low back pain radiating into both legs. (R.
525.) A subsequent MRI showed moderative degeneration changes in the cervical spine,
cervical disc bulging with mild to moderate canal stenosis, and no cervical cord
compression or signal abnormality. (R. 529.) The lumbar MRI showed no reoccurring
disk herniation at the L5-S1 level and a disk bulge at the L5-S1 and L4-5 discs. (R. 531.)
On December 4, 2012, Plaintiff sought care for cervical pain from a physical
therapist. (R. 238.) The physical therapist noted that this was “a new condition” with
8
Lordosis: “An anteriorly convex curvature of the vertebral column . . . .”
STEDMAN’S MEDICAL DICTIONARY, 1119 (28th ed. 2006).
10
pain being intermittent over the past year. (Id.) Plaintiff reported that “[t]wo months ago
had flare up of neck and arm symptoms possibly from moving his ladder. Had a tooth
pulled June 2012 which he feels increased his [symptoms].” (Id.) As it related to his
back, Plaintiff reported that he had no left leg symptoms (except for his leg feeling shaky)
and only left lower back pain since his surgery. (Id.) Plaintiff characterized his pain as
aching and intermittent, and reported that his level of pain was in a range in between 5/10
to 9/10. (Id.) His symptoms were exacerbated by lifting and walking, and relieved by
rest. (Id.) Plaintiff was prescribed with an in-home treatment program and physical
therapy appointments. (Id.)
On February 8, 2013, Plaintiff reported back to the physical therapist. (R. 248.)
Plaintiff had shoveled snow over the weekend and had a flare-up of neck and back pain.
(Id.) Plaintiff had failed to do his home exercises and had not attended his physical therapy
appointments. (Id.) His pain level during the appointment was 3 out of 10. (Id.) Plaintiff
was discharged for failing to complete his ordered appointments. (Id.)
On March 5, 2013, Dr. Santos saw Plaintiff related to his neck and left arm pain.
(R. 66.) Plaintiff reported having this pain for the past 3 months, which was exacerbated
by physical therapy. (R. 66.) An MRI of the cervical spine showed C3-4 left-sided
foraminal stenosis, as well as C5-6 bilateral foraminal stenosis. (R. 67, 626.) The
diagnosis by Dr. Santos was “degenerative disk disease of the cervical spine with C5-6
bilateral foraminal stenosis.” (R. 67.) No mention was made of back pain and Plaintiff
demonstrated a normal gait. (Id.) Plaintiff underwent a cervical nerve root injection with
no effect. (R. 70.)
11
On August 27, 2013, Plaintiff reported good, but only temporary relief with a root
injection. (R. 627.) Plaintiff was not in any acute distress on examination, he
demonstrated a normal gait, he had a good range of motion for his cervical spine and had
full-strength in his upper extremities. (Id.) Dr. Santos believed it was reasonable to
consider surgery in the form of a C5-6 anterior discectomy and fusion. (Id.)
On October 10, 2013, Plaintiff underwent surgery related to cervical degenerative
disk disease with disk herniation. (R. 78-80.) The preoperative examination made no
mention of Plaintiff’s lumbar condition and it was not listed on his active problem list.
(R. 83, 88.)
On April 4, 2014, Plaintiff reported back, lower extremity, and neck pain. (R.
104.) It was reported that Plaintiff had a history of two previous micro discectomies at
the L5-S1 level “but of late he has been having increasing low back pain and left lower
extremity pain.” (Id. (emphasis added).) It was noted that Plaintiff had been shoveling
snow and working on plumbing. (Id.) An April 18, 2014 MRI showed no recurrence of
disk herniation in the lumbar region. (R. 106.) The diagnosis as it relates to Plaintiff’s
back, was “onset low back pain secondary to degenerative disease of L5-S1.” (R. 107
(emphasis added).)
On April 8, 2014, Plaintiff reported that his neck pain was improved. (R. 634.)
His main complaint was lower back pain. (Id.) He claimed to be suffering from
increased lower back and extremity pain. (Id.) Plaintiff did not to appear to be in any
acute distress. (Id.) He showed a limited range in the lumbar region. (Id.)
12
On April 14, 2014, state agency physician Cliff Phibbs, M.D., assessed Plaintiff’s
limitations for the period of disability of April 1, 2011 through December 31, 2011.
According Dr. Phibbs, Plaintiff could occasionally lift or carry 20 pounds and frequently
lift 10 pounds. (R. 338.) In addition, Plaintiff could sit and/or stand with normal breaks
for 6 hours out of an 8-hour workday. (Id.) Dr. Phibbs concluded that Plaintiff could
occasionally: climb stairs and ladders, balance, stoop, kneel, crouch and crawl. (Id.)
Plaintiff had no manipulative, visual, communicative or environmental limitations. (Id.)
Dr. Phibbs found that Plaintiff had the requisite RFC to perform his past jobs. (R. 339.)
Dr. Phibbs noted that Plaintiff only had restrictions related to lumber issues, as Plaintiff’s
cervical issues began after the last date insured. (R. 338.) On reconsideration, Charles
Grant, M.D., found the same limitations for Plaintiff as those assessed by Dr. Phibbs. (R.
347-49.)
On July 15, 2014, Plaintiff reported increasing pain in his back over the “past
several months.” (R. 108.) It was also noted that Plaintiff had underwent a cervical
fusion in October 2013. (Id.) While Plaintiff represented that his arm problems had
resolved, he continued to have neck pain and his back was significantly worse. (Id.) The
physical examination showed that Plaintiff was not in acute distress, he ambulated with a
normal gait, had an intact sensation in the lower extremities, and had full strength in the
L2 to S1 nerve distributions. (Id.) An MRI of the lumbar spine showed significant loss
of disk height at the L5-S1 level with a disk bulge posteriorly and some central canal
narrowing. (R. 109.) Dr. Peterson and Plaintiff agreed to proceed with a L5-S1 fusion.
(Id.) There is no indication that the surgery ever took place because his insurance would
13
not pay for it unless Plaintiff underwent a certain amount of physical therapy, which
Plaintiff refused due to pain. (R. 201, 638.)
Plaintiff continued to have treatment of his cervical and lumbar pain during 2015
(R. 115, 201.) Plaintiff’s treatment included cervical injections and a cervical fusion, and
he treated with pain medications for his back pain. (R. 118-125, 137-38, 743-47, 75557.) Plaintiff also continued to complain about neck pain and extremity pain in 2016.
However, Dr. Santos could not identify anything structural on the MRIs of the cervical
spine or physiological issues that could explain his symptoms from a spine standpoint.
(R. 149.)
In a March 3, 2016 neurology report, it was noted that Plaintiff represented that his
“[p]ain in neck and arm first started in 2012, no inciting incident.” (R. 151.)
III.
LEGAL STANDARD
Judicial review of the Commissioner’s denial of benefits is limited to determining
whether substantial evidence on the record as a whole supports the decision, 42 U.S.C. §
405(g), or if the ALJ’s decision resulted from an error of law. Nash v. Comm’r, Soc. Sec.
Administration, 907 F.3d 1086, 1089 (8th Cir. 2018) (citing 42 U.S.C. § 405(g);
Chismarich v. Berryhill, 888 F.3d 978, 979 (8th Cir. 2018)). “Substantial evidence is less
than a preponderance, but enough that a reasonable mind would find it adequate to
support the Commissioner’s conclusions.” Id. (quoting Travis v. Astrue, 477 F.3d 1037,
1040 (8th Cir. 2007)). The Court “considers evidence that detracts from the
Commissioner’s decision as well as evidence that supports it.” Id. “If substantial
evidence supports the Commissioner’s conclusions, this court does not reverse even if it
14
would reach a different conclusion, or merely because substantial evidence also supports
the contrary outcome.” Id.
“In order to receive disability insurance benefits, an applicant must establish that
she was disabled before the expiration of her insured status.” See Pyland v. Apfel, 149
F.3d 873, 876–77 (8th Cir. 1998); see also 42 U.S.C. 416(i)(3); 20 C.F.R. § 404.130;
Rasmussen v. Shalala, 16 F.3d 1228 (8th Cir. 1994) (“To qualify for disability benefits,
Rasmussen had to prove that, on or before the expiration of his insured status, he was
unable to engage in substantial gainful activity due to a medically determinable physical
or mental impairment which was expected to last for at least twelve months or result in
death.”) (citation omitted). A non-disabling condition, which later develops into a
disabling condition after the expiration of a claimant’s insured status, cannot be the basis
for an award of disability benefits under Title II. See Thomas v. Sullivan, 928 F.2d 255,
260-61 (8th Cir. 1991). It is not enough that the impairments existed before the date a
claimant’s insured status expired; the impairments must have been disabling at that time.
See 20 C.F.R. § 404.131(a). Evidence of a disability subsequent to the expiration of
one’s insured status can be relevant, however, in helping to elucidate a medical condition
during the time for which benefits might be rewarded. See Pyland, 149 F.3d at 877
(citing Fowler v. Bowen, 866 F.2d 249, 252 (8th Cir. 1989)).
Plaintiff was insured through December 31, 2011 (R. 25); therefore, he must show
that his disability began before the end of his insurance period, and existed for twelve
continuous months to receive benefits. See 42 U.S.C. §§ 423(a)(1)(A), (c)(1)(B),
(d)(1)(A); 20 C.F.R. §§ 404.101(a), 404.131(a).
15
IV.
DISCUSSION
Plaintiff makes several challenges to the ALJ’s determination. First, Plaintiff
argues that the ALJ erred in finding that he did not have severe impairments related to his
neck during the period in which he was insured. (Dkt. 24 at 2, 4.) Second, Plaintiff
argues the ALJ erred by not giving weight to PA Luther’s opinion that he was unable to
work, including on the basis that Luther was a PA. (Id.) Third, Plaintiff argued that the
ALJ erred in finding that his degenerative disc disease, which has no cure, was not an
ongoing disabling problem through 2011 and beyond, and would not have allowed him to
work for more than 2-3 hours a day in 2011. (Id. at 3.) Fourth, Plaintiff argued that he
could not perform the tasks necessary to be a telemarketer at Best Buy because the sales
goals require someone to be calling 8 hours per day, which does not allow for
accommodations that would allow him to get up and walk or otherwise rest. (Id.)
Plaintiff also asserted that the Vocational Expert (“VE”) testified that he could not work
with a 15% disability, which he asserts the ALJ did not consider. (Id. at 2-4.) According
to Plaintiff there is not one telemarketing job that allows for a telemarketer to be in any
position but a sitting position for at least 8 hours, no employer would provide him with a
sit/stand desk, and a sit/stand option was not sufficient for him as he also needed to rest
due to pain. (Id.) The Court addresses each argument in turn.
A.
The ALJ’s Decision that Plaintiff’s Cervical Problems Were Not a Severe
Impairment During the Period Insured.
Having fully reviewed the record, the Court finds that there is substantial evidence
in the record as a whole to support the decision of the ALJ that Plaintiff did not have a
16
severe impairment related to his neck during the period in which he was insured. At Step
Two of the sequential analysis, the ALJ is required to determine whether a claimant’s
impairments are severe. See 20 C.F.R. § 404.1520(c). While “severity is not an onerous
requirement for the claimant to meet . . . it is also not a toothless standard.” Wright v.
Colvin, 789 F.3d 847, 855 (8th Cir. 2015) (citations omitted). An impairment is not
severe if it amounts only to a slight abnormality that would not significantly limit the
claimant’s physical or mental ability to do basic work activities. See Bowen v. Yuckert,
482 U.S. 137, 153 (1987). If the impairment would have no more than a minimal effect
on the claimant’s ability to work, then it does not satisfy the requirement of step two. See
Page v. Astrue, 484 F.3d 1040, 1043 (8th Cir. 2007) (citations omitted). Further, “[t]o
support the award of disability benefits, a disease must have progressed from latency to a
level constituting severe impairment as defined under Title II before the expiration of
the insured period.” List v. Apfel, 169 F.3d 1148, 1149 (8th Cir. 1999) (emphasis
added) (citing McClain v. Bowen, 848 F.2d 892, 894 (8th Cir. 1988)).
Here, there is no evidence in the record that Plaintiff had a severe impairment
related to his neck from April 2011 through December 31, 2011. It was not until April
2012, based on the available evidence, that Plaintiff presented to a doctor for any neck
pain. (R. 524.) Indeed, in December 2012, Plaintiff represented that his cervical pain
was a new condition over the past year with a flare-up occurring while moving his ladder
in approximately October 2012. (R. 238.) While Plaintiff ultimately had surgery on his
neck in October 2013 (R. 78-80), there is no evidence supporting the assertion of a severe
impairment to his neck in 2011. Indeed, Plaintiff represented to a medical provider that
17
his “[p]ain in neck and arm first started in 2012, no inciting incident” (R. 151), and PA
Luther, a treating provider, made no mention of a disabling neck condition until
November 2012. (R. 545.)
For all of the reasons stated above, the Court concludes that the ALJ’s decision
that Plaintiff’s neck ailment was not a severe impairment during the period in which
Plaintiff was insured (April 1, 2011 to December 31, 2011) is supported by substantial
evidence in the record as a whole.
B.
The Weight Provided by the ALJ to the Opinions of PA Luther that Plaintiff
Could Not Work
With respect to the opinions from PA Luther, the ALJ found as follows:
Opinions from a Physician’s Assistant provided on generic county forms
from May, July, August, and October 25, 2011 are given little weight due to
the significant improvement within 12 months from that time, consistent with
his notes that the limits followed recent surgery and the notes that opinions
should be reviewed in one month. (Exhibit 2F, at pages 6, 8, 10, 12)
Additionally, the final responsibility for deciding whether the claimant is
“disabled“ under the Social Security Act is reserved to the Commissioner,
and treating source opinions on issues reserved to the Commissioner of
Social Security are never entitled to controlling weight or special
significance. (SSR 96-5p, 20 CFR 404.1527(e) and 416.927(e)).
(R. 31.)
As previously stated, Plaintiff argues the ALJ erred by not giving weight to PA
Luther’s opinion that he was unable to work, including on the basis that Luther was a PA.
The Social Security Regulations state that “[t]reating source means your own
physician, psychologist, or other acceptable medical source who provides you, or has
provided you, with medical treatment or evaluation and who has, or has had, an ongoing
treatment relationship with you.” 20 C.F.R. § 404.1502 (emphasis added). Thus, the
18
definition of “treating source” itself recognizes that medical sources that are not
“acceptable” cannot be a “treating source.” The Eighth Circuit has similarly recognized
that other medical sources are not treating sources, unless associated with an acceptable
medical source. See Tindell v. Barnhart, 444 F.3d 1002, 1005 (8th Cir. 2006) (“Mr.
Cline was not a treating source as defined in the regulations, nor was he associated with a
physician, psychologist, or other acceptable medical source that could potentially give
him treating source status.”) (citing Shontos v. Barnhart, 328 F.3d 418, 426 (8th Cir.
2003) (giving treating source status to the group of medical professionals, including
therapists and nurse practitioners who worked with claimant’s psychologist, where the
treatment center used a team approach); Benton ex rel. Benton v. Barnhart, 331 F.3d
1030, 1037 (9th Cir. 2003) (noting that “the use of a team approach by medical providers
[wa]s analytically significant” in Shontos’s application of the treating source
regulations.”). For social security benefits applications filed prior to March 27, 2017,
which was the case here, the term “acceptable medical sources” does not include PAs, but
was limited to “[l]icensed physicians (medical or osteopathic doctors)” in addition to a
few specialized categories. 20 C.F.R. § 404.1513(a) (2016). A PA is considered an
“other” medical source, i.e., not an acceptable medical source, for such benefits
applications. See id. § 404.1513(d) (“Medical sources not listed in paragraph (a) of this
section (for example, nurse-practitioners, physicians’ [sic] assistants, naturopaths,
chiropractors, audiologists, and therapists)” (emphasis added)). Consequently, PA Luther
is not considered a “treating source” and is not entitled the deference due a treating
source under the regulations.
19
More importantly, the opinions between May 2011 and October 2011 from PA
Luther amounted to him checking a box representing that “Patient will not be able to
perform any employment in the foreseeable future.” (R. 537-44.) “[T]reating source
opinions on issues that are reserved to the Commissioner are never entitled to
controlling weight or special significance. Giving controlling weight to such opinions
would, in effect, confer upon the treating source the authority to make the determination
or decision about whether an individual is under a disability, and thus would be an
abdication of the Commissioner’s statutory responsibility to determine whether an
individual is disabled.” SSR 96-5P, 1996 WL 374183, at *2 (emphasis added); see also
Davidson v. Astrue, 578 F.3d 838, 842 (8th Cir. 2009) (quoting 20 C.F.R. §§
416.927(e)(1), (3)) (citation omitted) (“[A] treating physician’s opinion that a claimant is
‘disabled’ or ‘unable to work,’ does not carry ‘any special significance,’ because it
invades the province of the Commissioner to make the ultimate determination of
disability.”). Indeed, the Eighth Circuit has held that “[a] treating physician’s opinion
that a claimant is disabled or cannot be gainfully employed gets no deference because it
invades the province of the Commissioner to make the ultimate disability determination.”
See House v. Astrue, 500 F.3d 741, 745 (8th Cir. 2007) (citing Krogmeier v. Barnhart,
294 F.3d 1019, 1023 (8th Cir. 2002)).
Therefore, the Court finds that the ALJ did not err by not giving great weight to
PA Luther’s opinions that Plaintiff was unable to work.
20
C.
Whether the ALJ’s RFC Relating to the Limitations Caused by Plaintiff’s
Back Impairments is Supported by Substantial Evidence
Defendant argues that Plaintiff is not entitled to disability benefits for impairments
related to his back because he failed to show a limitation lasting longer than twelve
months. Plaintiff asserts that his degenerative disk disease is an ongoing problem and
ALJ’s decision is flawed because she failed to consider the whole picture of the
progression of his disease. (Dkt. 24 at 3.) With respect to Plaintiff’s back limitations, the
ALJ found as follows:
In summary, these records indicate that, during the relevant period, the
claimant did have two surgeries, to address symptoms beginning in April
2011. However, by December 2011, within 12 months and not extending
past the date last insured, the claimant had recovered from the surgeries,
denied problems with pain and weakness, and did not exhibit any limitations
on physical examination. An MRI study in April 2012, with a new
occurrence of pain in connection with new neck pain, showed stable findings
with the post-surgical changes and no evidence of nerve root involvement.
(Exhibit IF, at pages 15-16, See Exhibit 4F, at page 10) In April 2013, when
he complained of left leg weakness, he showed a normal gait and intact
neurological function. (Exhibit 4F, at page 11) The first time he showed
changed findings was in April 2014. (Exhibit 4F, at page 20).
(R. 30.) The ALJ also noted that there were “no new records from the relevant time
period that supported greater limitations related to the back impairment.” (R. 31.) In
addition, the RFC considered Plaintiff’s work history (the fact that Plaintiff had stopped
working when his job was eliminated) and his daily activities (including mowing the
lawn). (R. 31-32.)
“A disability claimant has the burden to establish her RFC.” Eichelberger v.
Barnhart, 390 F.3d 584, 591 (8th Cir. 2004). The Eighth Circuit has held that “a
‘claimant’s residual functional capacity is a medical question.’” Id. (quoting Lauer v.
21
Apfel, 245 F.3d 700, 704 (8th Cir. 2001)). “‘[S]ome medical evidence’ must support the
determination of the claimant’s RFC, and the ALJ should obtain medical evidence that
addresses the claimant’s ‘ability to function in the workplace.’” Id. (quoting Dykes v.
Apfel, 223 F.3d 865, 867 (8th Cir. 2000) (per curiam)). However, “there is no
requirement that an RFC finding be supported by a specific medical opinion.” Hensley v.
Colvin, 829 F.3d 926, 932 (8th Cir. 2016) (citing Myers v. Colvin, 721 F.3d 521, 526–27
(8th Cir. 2013); Perks v. Astrue, 687 F.3d 1086, 1092-93 (8th Cir. 2012)).
An ALJ should consider several factors, in addition to the objective medical
evidence, in assessing a claimant’s subjective symptoms, including daily activities; work
history; intensity, duration, and frequency of symptoms; any side effects and efficacy of
medications; triggering and aggravating factors; and functional restrictions. See Polaski
v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984); Social Security Ruling (“SSR”) 16-3p,
2016 WL 1119029, at *5-7 (S.S.A. Mar. 16, 2016) (listing these factors as relevant in
evaluating the intensity, persistence, and limiting effects of a person’s symptoms). But
the ALJ need not explicitly discuss each factor. See Goff v. Barnhart, 421 F.3d 785, 791
(8th Cir. 2005).
Here, the medical evidence relating to Plaintiff’s back impairment supports the
ALJ’s light RFC for Plaintiff. There is no dispute that Plaintiff reported to urgent care
clinic on April 1, 2011 with back pain that culminated in an April 22, 2011 surgery for
left L5-S1 herniated nucleus pulposus and left S1 radiculopathy. (R. 39-40, 43-44, 166.)
No limitations were put into place for Plaintiff except to “mobilize as tolerated.” (R. 44.)
The record is devoid of any contact with medical providers for his back until
22
approximately four months later in August 2011, and even Plaintiff himself represented
that he had been doing well since his surgery until a few weeks prior to his visit when he
started to have recurrent low back pain. (R. 48, 55.) Dr. Santos characterized Plaintiff’s
back problems as a “mild picture.” (R. 48.) Ultimately, revision surgery on Plaintiff’s
back was required. (R. 52-53.) After Plaintiff’s October 22, 2011 surgery, Dr. Santos
provided a post-surgical temporary limitation on Plaintiff of no more than 10 pounds and
no repetitive bending or twisting for six weeks (through the first week of December
2011). (R. 52-53) The ALJ properly discounted the temporary restriction, especially
given Plaintiff’s level of recovery prior to the last date he was insured. See Espinoza v.
Berryhill, No. 18-CV-00315-MEH, 2018 WL 3829956, at *8 (D. Colo. Aug. 13, 2018)
(“[T]he ALJ noted that this was a temporary restriction, which has little relevance to Mr.
Espinoza’s ‘overall ability to function on a daily basis.’ I agree with the ALJ that limited
and temporary restrictions generally receive less weight.”) (citations omitted); see also 42
U.S.C. § 423(d)(1)(A) (stating that an impairment must be expected to last at least twelve
months).
As of December 13, 2011, Dr. Brehmer and Dr. Santos examined Plaintiff and
reported that he was doing well, he denied having any issues with pain, denied any
radicular symptoms, denied any weakness in the lower extremities, and denied any
numbness or tingling. (R. 61.) The radiography showed normal alignment and only mild
degenerative disk disease. (R. 61-62.) The doctors’ assessment for Plaintiff was that he
was clinically doing well and that “he can be doing activities as tolerated and we can see
him back in clinic on an as needed basis.” (R. 62.) Plaintiff sought no further care for his
23
back through the date of last insured. It was not until April 2012 that Plaintiff sought any
medical attention for his back, and even then, Dr. Ghose only noted some tenderness
along his spine on palpation, but no pain with straight leg raising. 9 (R. 525.) Plaintiff
also had normal strength, and a grossly intact sensation. (Id.) Radiography on Plaintiff’s
back only showed a prior lumbar surgery and the MRI showed no evidence of a residual
disk herniation. (R. 525, 531.) Other than complaining about a flare-up of back pain to a
therapist after shoveling snow in February 2013, there was no mention of any limitation
to Plaintiff’s functioning as it relates to his back until April 2014, over two years after the
date Plaintiff was last insured, when he asserted he had been having increasing low back
pain “as of late,” apparently after shoveling snow and doing plumbing work. (R. 104,
248.) Moreover, there was no evidence during the relevant time period that Plaintiff
needed to get up and walk about during the workday or otherwise rest. The medical
evidence, or lack thereof, coupled with Plaintiff’s representations regarding working after
the December 2011 surgery (R. 317), being able to walk a quarter-mile (R. 319), going
grocery shopping (R. 475), and mowing his yard (even in 2014) (R. 474), leads the Court
to find that substantial evidence in the record as a whole supports the ALJ’s exertional
RFC during the relevant period in question.
9
While flexion and extension were decreased, it was unclear whether this related to
Plaintiff’s neck, back, or both.
24
D.
Whether Plaintiff Was Able to Perform His Past Work During the Relevant
Time Period
During the hearing before ALJ, Plaintiff represented to the VE that as part of his
past positions as a telemarketer and phone order clerk he “could sit or stand but could not
walk around” and performed “a lot of” keyboarding. (R. 326-27.) The VE went on to
testify that the telemarketer and phone order clerk positions were sedentary and unskilled.
(R. 327.) The ALJ propounded to the VE the following hypothetical:
I’m going to ask you some hypothetical questions and I want you to assume
for the purposes of these questions that during the relevant period, we had an
individual who is 47 years of age. So a younger individual, with the
equivalent of a high school education and work experience as described in
you [sic] report and as modified by your testimony and during that period of
time, this individual was impaired by a combination of impairment [sic] such
that in the first hypothetical question this individual would have been capable
of light work exertionally; lifting up to 20 pounds occasionally, 10 pounds
frequently; six hours of walking or standing; two hours of sitting in an eighthour workday; that would be further limited by no more than occasional
bending, stooping, kneeling, crouching, crawling or climbing and should not
involve exposure to high concentrations of air pollutants. Given those
limitations first of all could this individual perform any of the jobs done by
the Claimant in the past?
(R. 329.)
The VE responded that a person with those limitations could perform the
telemarketer and the phone order clerk positions, and that these positions could
accommodate intermittent typing. (R. 328-29.) While the positions could accommodate
alternating between sitting and standing, as validated by Plaintiff, the VE noted that
walking away from the work area to relieve any symptoms would be problematic,
25
including if it would take him off task for 15% of the day. 10 (R. 326, 330-31.) The VE
went on to testify that the information he provided was consistent with the Dictionary of
Occupational Titles, as well as his own experience as a vocational counselor. (R. 330.)
“[A] claimant is not disabled if he retains the RFC to perform . . . the actual
functional demands and job duties of a particular past relevant job.” Wagner v. Astrue,
499 F.3d 842, 853 (8th Cir. 2007) (citing Jones v. Chater, 86 F.3d 823, 826 (8th Cir.
1996); SSR 82-61); see also Lowe v. Apfel, 226 F.3d 969, 973 (8th Cir. 2000) (“Where
the claimant has the residual functional capacity to do either the specific work previously
done or the same type of work as it is generally performed in the national economy, the
claimant is found not to be disabled.”). The ALJ may take testimony from a vocational
expert to evaluate whether a claimant is capable of performing past relevant work.
Wagner, 499 F.3d. at 853-54 (citing 20 C.F.R. § 404.1560(b)(2)) (“We may use the
services of vocational experts or vocational specialists . . . to obtain evidence we need to
help us determine whether you can do your past relevant work, given your residual
functional capacity.”). To this end, a claimant is not disabled if he can perform either
“[t]he actual functional demands and job duties of a particular past relevant job” or “[t]he
functional demands and job duties of the occupation as generally required by employers
throughout the national economy.” Id.; see also Samons v. Astrue, 497 F.3d 813, 821
(8th Cir. 2007) (citing Martin v. Sullivan, 901 F.2d 650, 653 (8th Cir. 1990)) (“An ALJ
10
There is no reference to a 15% disability in the VE’s testimony as asserted in
Plaintiff’s brief. Thus, the Court assumes that Plaintiff was referring to this testimony
from the VE in response to his attorney’s questioning about the hypothetical if the person
was off task 15% of the workday.
26
may find the claimant able to perform past relevant work if the claimant retains the
ability to perform the functional requirements of the job as [ ] he actually performed it or
as generally required by employers in the national economy.”); 20 C.F.R. §
404.1560(b)(2).
“A vocational expert’s testimony constitutes substantial evidence when it is based
on a hypothetical that accounts for all of the claimant’s proven impairments.” Hulsey v.
Astrue, 622 F.3d 917, 922 (8th Cir. 2010). A hypothetical question need only include the
impairments and limitations that the ALJ finds are credible and substantially supported
by the record as a whole. See Scott v. Berryhill, 855 F.3d 853, 857 (8th Cir. 2017) (a
properly phrased hypothetical includes limitations mirroring those of claimant); see also
Lacroix v. Barnhart, 465 F.3d 881, 889 (8th Cir. 2006) (“The ALJ’s hypothetical
question to the vocational expert needs to include only those impairments that the ALJ
finds are substantially supported by the record as a whole.”). The burden at step four
remains with the claimant to establish that she cannot return to her past relevant work.
Moore v. Astrue, 572 F.3d 520, 523 (8th Cir. 2009). Social Security Ruling 82-61 also
explicitly notes the DOT “descriptions can be relied upon--for jobs that are listed in the
DOT--to define the job as it is usually performed in the national economy.” SSR 82-61,
1982 WL 31387, at *2. The regulations similarly note resources such as the DOT may be
used to help determine whether a claimant can perform past relevant work. See 20 C.F.R.
§ 404.1560(b)(2).
Here, as set forth more fully above, the ALJ’s hypothetical to the VE incorporated
the impairments reflected in the light RFC, supported by substantial evidence in the
27
record, which did not include any requirement (as argued by Plaintiff) that he needed to
rest for 15% of the time or otherwise move away from his desk. Based on the
hypothetical, the VE found that such a hypothetical claimant would be able to perform
the position of telemarketer and the phone order clerk. The telemarketer and phone order
clerk are sedentary in nature under the DOT and the VE’s testimony. Thus, substantial
evidence supports the ALJ’s decision that Plaintiff could perform his past relevant
work. 11
V.
ORDER
Based on the files, records, and proceedings herein, IT IS ORDERED THAT:
1.
Plaintiff Daniel A.’s Motion for Summary Judgment (Dkt. 24) is DENIED;
2.
Defendant Commissioner of Social Security Andrew Saul’s Cross-Motion
for Summary Judgment (Dkt. 25) is GRANTED; and
3.
This case is DISMISSED WITH PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.
DATED: September 11, 2019
s/Elizabeth Cowan Wright
ELIZABETH COWAN WRIGHT
United States Magistrate Judge
11
The Court notes that Plaintiff’s argument that no company would purchase him a
sit/stand desk ignores the fact that he admitted at the hearing before the ALJ that he could
sit and stand at his Best Buy position, even though he was not provided with such a desk.
Moreover, Plaintiff’s claims that he was not good at telemarketing has nothing to do with
whether he physically could perform the work.
28
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