Anderson v. Berryhill
Filing
21
ORDER denying 17 Plaintiff's Motion for Summary Judgment; granting 19 Defendant's Motion for Summary Judgment.(Written Opinion) Signed by Magistrate Judge Hildy Bowbeer on 3/25/2019. (JMK)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Charles A.,
Case No. 18-cv-003 (HB)
Plaintiff,
v.
ORDER
Nancy A. Berryhill,
Acting Commissioner of Social
Security,
Defendant.
HILDY BOWBEER, United States Magistrate Judge
Pursuant to 42 U.S.C. § 405(g), Plaintiff Charles A. seeks review of the Acting
Commissioner of Social Security’s (the “Commissioner”) denial of his application for
disability insurance benefits (“DIB”). 1 See generally (Compl. [Doc. No. 3]). The parties
filed cross-motions for summary judgment. (Pl.’s Mot. for Summ. J. [Doc. No. 17];
Def.’s Mot. for Summ. J. [Doc. No. 19]). For the reasons set forth below, the Plaintiff’s
Motion for Summary Judgment is denied and the Commissioner’s Motion for Summary
Judgment is granted.
1
The Social Security Administrative Record (“R.”) is available at Doc. No. 13. For
clarity, when citing to the record, the Court uses the pagination as marked in the record
(on the bottom right of each page) rather than the CM/ECF pagination.
I.
BACKGROUND
A.
Procedural History
Plaintiff protectively filed for DIB on April 15, 2014. (R. 251–57). Plaintiff
alleged he was unable to work as a result of of traumatic brain injury, broken ribs,
arthritis in both hands, broken wrists, a plate inserted into his right wrist, a right shoulder
injury, obesity, somatoform disorder, personality disorder, chronic pain disorder, and
possible attention deficit hyperactivity disorder. He asserted an alleged onset date
(“AOD”) of June 16, 2011. See, e.g., (R. 49, 348).
The ALJ issued an unfavorable decision on November 23, 2016. (R. 47–68).
Pursuant to the five-step sequential evaluation procedure outlined in 20 C.F.R.
§ 404.1520(a), the ALJ first determined that Plaintiff had not engaged in substantial
gainful activity since at least his AOD of June 16, 2011. (R. 49). At step two, the ALJ
determined that Plaintiff had severe impairments of
traumatic brain injury with residual cognitive deficits and post traumatic
seizures; bilateral wrist fractures, status post open reduction and internal
fixation on the right, and closed reduction and percutaneous pinning on the
left; multiple right rib fractures, statues post fixation of the 8th rib;
somatoform disorder; personality disorder; and possible attention deficit
hyperactivity disorder.
(R. 49). The ALJ found at the third step that no impairment or combination of
impairments met or medically equaled the severity of an impairment listed in 20 C.F.R.
part 404, subpart P, appendix 1. (R. 51–54).
2
At step four, the ALJ determined that Plaintiff had the residual functional capacity
(“RFC”) 2
to perform light work as defined in 20 CFR 404.1567(b), except no work at
unprotected heights or near hazards; no more than frequent handling,
fingering, or reaching; and routine, repetitive, simple work; with no more
than brief and superficial contact with coworkers and supervisors . . .; and
low stress, defined as no more than routine changes in the work process or
work setting.
(R. 54). The ALJ also found at step four that Plaintiff was not able to perform his past
relevant work as a stock clerk, construction laborer, auto parts clerk, and furniture
assembler because “[t]his work all exceeds the light exertional level set forth in the above
residual functional capacity.” (R. 66–67).
At step five, however, considering Plaintiff’s age, education, work experience, and
RFC, the ALJ found Plaintiff could work in jobs that exist in significant numbers in the
national economy, including: bench assembler, electronics worker, and cleaner. (R. 67).
Thus, the ALJ concluded that Plaintiff was not disabled. (R. 68).
Plaintiff sought review by the Appeals Council, which denied his request. (R. 1–
3). The ALJ’s decision therefore became the final decision of the Commissioner. (Id.);
see also 20 C.F.R. § 404.981. Plaintiff then commenced this action for judicial review.
Plaintiff contends the ALJ erred by failing “to properly evaluate vocational testing
performed by Courage Kenny that demonstrated [Plaintiff] is not able to engage in
2
An RFC assessment measures the most a person can do, despite her limitations. 20
C.F.R. § 404.1545(a)(1). The ALJ must base the RFC “on all relevant evidence,
including medical records, observations of treating physicians and others, and the
claimant’s own descriptions of his or her limitations.” Eichelberger v. Barnhart, 390
F.3d 584, 591 (8th Cir. 2004).
3
competitive employment.” See (Mem. in Supp. of Pl.’s Mot. for Summ. J., “Pl.’s Mem. in
Supp.” [Doc. No. 18 at 14–17]).
B.
Factual Background 3
1.
Plaintiff’s Background and Testimony
As of his date last insured, Plaintiff was thirty-seven years old, and therefore a
“younger person.” See 20 C.F.R. § 404.1563(c); see also (R. 115). Plaintiff has a high
school education. See (R. 78–79, 200). He worked consistently before the AOD, 4 had
some earnings in 2012, which did not rise to the level of substantial gainful activity, and
appears not to have worked thereafter. See, e.g., (R. 49, 258, 267–71).
Plaintiff’s impairments can be traced to a June 16, 2011, workplace accident in
which he “fell from the top of a tanker truck . . . , fractured both wrists, 6 ribs, punctured
his lung, and sustained a [traumatic brain injury]. He had a plate placed in his[] chest
cavity to keep his chest cavity expanded to be able to breathe without a respirator.” (Id.
at 733; see also (id. at 103–04 (Plaintiff’s testimony that he fell from 15 or 20 feet head
first onto asphalt))).
At the hearing before the ALJ on August 23, 2016, Plaintiff discussed his hand
injuries and why they prevent him from working. (R. 87–88). For instance, Plaintiff
stated that when he bends his left hand, he gets “a sharp shooting pain” and his right hand
3
The Court has reviewed the entire administrative record thoroughly, 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.
4
Based on Plaintiff’s testimony and earnings, it appears that he worked only seasonally
from 2007 until his AOD. See (R. 80, 258).
4
is “arthritic . . . . It’s slow[, but] I can move it.” (R. 88). Plaintiff testified his main
problem with his left wrist occurs when he tries to bend it. (R. 107). Plaintiff mentioned
that his right wrist does not hurt him as much as his left, but that it is “slower than the left
one.” (Id.) Plaintiff believed he could lift ten pounds at most with his left hand. (R. 92).
Plaintiff did not believe he was capable of lifting any amount of significant weight with
his right hand. (Id. (“The right side don’t lift nothing anymore.”)). Plaintiff testified he
was not still receiving treatment for his hands because “[t]here is nothing more we can do
with my hands.” (R. 83).
With respect to his activities of daily living, Plaintiff testified that he drives, but
that he uses his “left knee and [his] left hand” to control the wheel. (R. 88). He stated he
does not use his right hand to grip the wheel because “[t]he right side of my body is
trashed and the left side is what I’m learning to use.” (Id.) Plaintiff also stated that he
can still use his right hand to feed himself and pick up silverware. (Id.) Plaintiff further
mentioned that he can use his right hand for perhaps ten to fifteen minutes before the pain
starts and that he has problems with both hands going numb. (R. 90). With respect to the
loss of sensation, Plaintiff stated that it takes minutes for the feeling to return, and while
experiencing these symptoms, he cannot use his hands at all. (Id.) Plaintiff estimated
that he experiences these symptoms approximately six times per day. (Id.) Plaintiff also
testified that he is able to use zippers, but prefers to wear clothes that do not use them,
like sweat pants instead of jeans. (R. 89). Plaintiff lives with his father and stepmother
(R. 95). Plaintiff also testified that he pays his bills with his worker’s compensation
money. (Id.) Plaintiff stated he cooks frozen meals, like pizza and pot pies, and can fix
5
himself a sandwich. (R. 96). Plaintiff does not do any cleaning, but “will take the
garbage out to the can.” (R. 97). Plaintiff testified that he rarely watches television
because he cannot concentrate on it. (R. 98).
As to his rib and chest injuries, Plaintiff testified that he had a plate inserted into
his chest to aid with breathing and the plate inhibits his ability to walk, stand, and sit for
longer than about an hour. (R. 91–92).
Plaintiff testified that his traumatic brain injury has prevented him from working
because he now has problems “with impulse control, a problem with patience. I can’t
pay attention. I can’t remember.” (R. 94). Plaintiff also testified that he is no longer
getting treatment for these issues and that he did not remember who had told him that
there was nothing more that could be done for him. (R. 94–95).
Plaintiff testified, however, that he is continuing to see a seizure specialist.
Plaintiff could not specifically speak to the frequency of his seizures because it he does
not always know whether his symptoms are seizure symptoms or some other aspects of
his cognitive difficulties. (R. 92–93). With respect to his eyesight, Plaintiff testified that
his left eye was “shot” and that he could barely see out of it. (R. 93). He acknowledged,
however, that he renewed his license earlier in the summer and passed his vision test
because he was wearing his glasses. (R. 93).
There was also discussion during the hearing about the lengths to which Plaintiff
had to go to obtain worker’s compensation benefits. Plaintiff’s attorney described those
efforts, but stated that “once the Courage Kenny report had become promulgated or
6
published, whatever, the insurance company gave up,” and Plaintiff received his worker’s
compensation benefits. (R. 85).
Plaintiff also testified about coordinating with “a qualified vocational
rehabilitation consultant [provided by the worker’s compensation insurance provider] . . .
to help me see if there’s a pathway back to employment.” (R. 101). He described being
given “thousands of leads,” applying for many of these, and going to “lots of interviews.”
(R. 101–02). But at some point, “the insurance company gave up on . . . trying to find
[him] work.” (R. 103).
2.
Vocational Expert Testimony
Steve Bosch, a vocational expert, testified before the ALJ. See generally (R. 108–
13). First, the ALJ posed questions to Bosch regarding a hypothetical person capable of
light work, lifting up to twenty pounds occasionally and ten pounds frequently, and
further restricted to routine, repetitive, and simple work, avoiding unprotected heights or
work near hazards, no more than frequent handling, fingering, or reaching, and no more
than brief superficial contacts with coworkers and supervisors. (R. 110). Bosch opined
that such a person could not perform Plaintiff’s past relevant work. (R. 110–11). That
said, Bosch stated that the hypothetical person “could perform bench assembly tasks,” be
employed as an electronics worker, or do “some cleaner work or janitorial work at the
light level.” (R. 111).
The ALJ also questioned Bosch regarding whether the hypothetical person above,
with the additional limitations of being “unable to use the right dominant hand in work
activity” and limited to the left nondominant hand, would be capable of competitive
7
employment in the identified jobs. (Id.) Bosch opined that would such a person would
be unable to perform bench assembly tasks, or be employed as an electronics work,
cleaner, or janitor, and did not suggest additional jobs that the hypothetical person with
these additional limitations would be capable of performing. (Id.) Finally, the ALJ asked
if that hypothetical person would be employable if he also had impulse control and
impatience resulting in conflicts with supervisors and coworkers. (Id.) Bosch opined
that “no employment would be possible” under those circumstances. (R. 111–12).
In response to questions by Plaintiff’s attorney, Bosch opined that a hypothetical
person with the limitations described above who also had “[a]n inability to sustain
attention and concentration,” would be incapable of competitive employment. (R. 113).
3.
Relevant Medical Evidence
a.
Wrist Pain and Range of Motion
Plaintiff was treated by a number of medical professionals in the aftermath of his
workplace injury. Among these were occupational therapists who assisted Plaintiff with
the injuries to his hands and wrists. For example, on September 9, 2011, Plaintiff saw
occupational therapist Joanne Sypnieski. (R. 797–99). Sypnieski noted Plaintiff’s
statements that he was not having much wrist pain, and that his biggest concern was that
his “[l]eft wrist doesn’t move as well as the right.” (R. 797). Objective testing also
demonstrated improved grip strength over initial assessments. (R. 798). At his next visit
on September 12, 2011, Plaintiff worked with Julie Henderson, another occupational
therapist. (R. 801–04). At this visit Henderson opined that Plaintiff is “making gradual
slow improvements” and had met “[s]everal goals . . . from initial eval.” (R. 801). On
8
October 24, 2011, Henderson specifically mentioned that Plaintiff’s right wrist “grip
strength improved nicely” on the basis of the objective tests performed that day. (R. 849,
850). Henderson also noted that Plaintiff indicated he was using his right hand more than
his left in activities of daily living. (R. 849). Additional visits with occupational
therapists during this time frame demonstrate Plaintiff was continuing to improve, if
slowly, and none of the treatment notes indicate setbacks, although there is also
discussion of Plaintiff’s progress plateauing, particularly regarding right wrist
improvements. See, e.g., (R. 806, 810, 814, 817, 822, 825, 829–30, 832, 837–38).
Plaintiff consistently reported no pain while at rest. See, e.g., (R. 849 (chart for
9/12/2011, 10/5/2011, 10/14/2011, 10/17/2011, and 10/24/2011)). He consistently
reported pain with use with respect to both wrists, but indicated significantly more pain in
his left wrist than his right wrist. See, e.g. (id.). Specifically, Plaintiff rated his pain as
varying between one to three out of ten for his right wrist and six to seven out of ten for
his left wrist. See, e.g. (id.) His complaints of pain remained about the same throughout
much of 2011, although he did indicate improvement with left wrist pain after he used a
split on that wrist. See, e.g., (R. 854).
On November 22, 2011, Plaintiff met with John Bowar, M.D., a staff physician
working in rehabilitation services. (R. 953–54). During this visit, Dr. Bowar noted that
Plaintiff’s right wrist presented as unremarkable and “[m]otion grasp-release appeared to
be good.” (Id.) Dr. Bower did note some issues with Plaintiff’s “left hand hyperflexion”
and “some medial wrist pain.” (Id.) Dr. Bower recommended Plaintiff start routine
work-hardening for observed general physical deconditioning. (Id.) He suggested
9
Plaintiff work “on the ground” for the next three to four months. (Id.) Plaintiff told Dr.
Bowar that his occupational therapy sessions had yielded “significant improvement.” (R
954).
On February 6, 2012, wrist x-rays were generally unremarkable. (R. 974, 979).
Also on February 6, 2012, Felicity Fishman, M.D., and Thomas Varecka, M.D., released
Plaintiff to light duty work with restrictions that allowed him to lift and carry twenty to
thirty pounds, but prohibited Plaintiff from working at heights. (R. 974, 978, 983). On
March 23, 2012, in connection with a follow-up visit with Plaintiff, Dr. Bowar agreed
with Dr. Fishman and Dr. Varecka’s assessments. (R. 983).
On June 15, 2012, Plaintiff was seen by Krista Dierkhising, a speech language
pathologist. (R. 1048). The appointment focused on Plaintiff’s attempts to pass an
upcoming driver’s test at the DMV because “[h]e must pass this test in order to be able to
work and drive.” (Id.) During this appointment, Plaintiff stated that he recently began
working a four- to five-hour shift driving a truck, but complained that he had trouble
sleeping “because of the pain he is in from the bouncing in the truck.” (Id.) Plaintiff
indicated no issues with his wrists in this regard at that time. (Id.)
On January 18, 2013, when meeting with James Thomson, Ph.D., Plaintiff stated
that he believed his right wrist was more functional than his left. (R. 1108). Also during
the visit with Dr. Thomson, Plaintiff stated “that he nearly took a minimum wage job at
Super America,” because of frustrations trying to find a higher paying job. (R. 1107).
Plaintiff also told Dr. Thomson that he had “done some fishing.” (R. 1108). In
December 2013, Plaintiff met with Jun Herrera, M.D. (R. 899–903). Plaintiff denied any
10
numbness or weakness and objective tests showed five out of five strength in the upper
extremities and good hand coordination. (R. 900–01).
In March of 2014, Plaintiff saw Steven Lockman, M.D. (R. 1267.) Dr. Lockman
stated he had last seen Plaintiff seven months earlier. (Id.) At this visit, Dr. Lockman
opined that Plaintiff “is doing well from a functional standpoint.” (Id.) May 2014
treatment notes from Nova McNally, an occupational therapist, indicate that Plaintiff
believed he was better able to tolerate his home therapy routine. (R. 1282 (stating “I feel
like the exercises are a little bit better.”). Plaintiff reported no pain in his wrists at that
visit. (Id.) In June 2014, Plaintiff was seen again by Dr. Lockman. (R. 1289–93).
During this appointment, Dr. Lockman noted that Plaintiff possessed a “good grip.” (R.
1290). In August 2016, Plaintiff saw Dr. Lockman, who reported that Plaintiff’s last visit
had been in November 2015. (R. 1479). Plaintiff’s principal complaint at the August
2016 visit was related to pain in his right wrist, and not his left. (Id.) Dr. Lockman found
that Plaintiff had only “[m]ildly reduced ranged of motion in terms of flexion-extension”
in his right wrist and that “[s]ensation is intact. Strength is full.” (Id.). Dr. Lockman
noted this was the first time Plaintiff presented to him with complaints of right wrist pain.
(Id.).
b.
Cognitive Impairments
As early as September 2011, Plaintiff indicated to the occupational therapists
treating his wrists that he no longer needed to go to occupational therapy for his traumatic
brain injury. See, e.g., (R. 797, 801). In November 2011, Dr. Bower opined that Plaintiff
had “recovered quite well” regarding his traumatic brain injury. (R. 953). Plaintiff also
11
indicated to Dr. Bower that he was not suffering from headaches, vision changes,
hearing, or difficulties with mood or having problems in crowds or with overstimulation,
and was “pretty happy with his recovery from a cognitive standpoint.” (R. 954–55). On
this basis, Dr. Bower opined that “[f]rom a cognitive standpoint it seems that [Plaintiff]
would be able to return to work.” (R. 955).
On September 3, 2014, Plaintiff had a neuropsychological evaluation with Thomas
Beniak, Ph.D. (R. 1436–46). As part of his assessment, Plaintiff was given a WAIS-III
IQ test. This test demonstrated “[o]verall intellectual capability [that] falls in the upper
end of the average range.” (R. 1436). Dr. Beniak also noted particular areas of strength,
including visuospatial reasoning, which Dr. Beniak described as “exceptional” and
“falling into the very superior range.” In addition, Dr. Beniak stated Plaintiff “completed
these tasks utilizing his nonpreferred left hand, this clearly negatively affecting his
overall performance.” Dr. Beniak also noted that these results were consistent with
previous results from an October 31, 2012, test. (Id.). Ultimately, Dr. Beniak concluded
that Plaintiff’s “intellectual and cognitive capacity would not prevent him from pursuing
any number of vocational options should he be so motivated.” (R. 1446). Dr. Beniak
went on to opine that “[q]uite frankly, impediments to return to work are far greater with
regard to his physical status . . . than are those related to his neuropsychological status.”
(Id.). But Dr. Beniak noted that Plaintiff’s physical needs related to areas “outside my
area of expertise.” (R. 1445).
On September 9, 2014, in a visit with his treating neurologist, Frederick
Langendorf, M.D., Plaintiff told Dr. Langendorf that he believed one of his medications,
12
Keppra, was making him more irritable. (R. 1346). In response to this concern, Dr.
Langendorf prescribed Lamictal and had Plaintiff cease use of Keppra. (Id.) In followup visits, Plaintiff stated he believed his anger issues were better controlled. For
example, in April 2015, Plaintiff was seen by Barbara Patrick, M.D., and noted that his
irritability and anger issues were “much improved.” (R. 1388). In November 10, 2015,
Plaintiff was seen by Dr. Langendorf and stated that his anger issues were about ten
percent of what they had been on Keppra. (R. 1453).
On October 14, 2014, in response to Plaintiff’s attorney’s request for a disability
opinion, Dr. Beniak stated “I continue to believe that although [Plaintiff] does have some
permanent, mild, short-term memory deficits from his traumatic brain injury, these
difficulties are far outweighed by his numerous and often considerable intellectual and
cognitive capabilities, especially those involving non-verbal and perceptual skills.” (R.
1415).
In August 2016, Plaintiff told Dr. Lockman that his emotions were better
controlled. (R. 1479).
c.
Vocational Evaluation Reports
In August 2013, Plaintiff was evaluated by Susanne Grobe Ranheim, MS, a
certified disability management specialist and a certified vocational evaluator. (R. 456–
74). In her report, Ranheim stated that Plaintiff is capable of doing “the “laundry,
washing dishes, [illegible], cooking, grocery shopping, basic cleaning, and taking the
garbage out.” (R. 459). She stated Plaintiff enjoys hunting and fishing, and went hunting
in the fall of 2012, but that he was limited because he “couldn’t shoot the gun.” (Id.). She
13
noted that Plaintiff believed his memory issues had “improved since the injury as a result
of using several methods to increase his memory including using Post-It notes, keeping
two sets of keys, making lists, and keeping a day planner.” (R. 460).
During the evaluation, Plaintiff was given multiple tests: the Career Ability
Placement Survey (“CAPS”); the Career Assessment Inventory; and the Myers Briggs
Type Indicator. (R. 461–64). The CAPS test results indicated that Plaintiff possessed
aptitudes in spatial relations, word knowledge, and numerical ability, and had
deficiencies in verbal reasoning, language usage, and perceptual speed and accuracy. (R.
461). Other scores, including Plaintiff’s manual speed and dexterity, were normal. (Id.)
Ranheim also discussed Plaintiff’s attempts at finding employment. For instance,
she recounted how Plaintiff told her that “he is honest with potential employers about
having restrictions, commenting ‘Doctors orders. It is what it is. If an employer can
accommodate, great, if not, oh well.’” (R. 465). Ranheim also noted that Plaintiff
believes he is capable of performing a 10th of the physical labor he
performed prior to the injury. For example, [Plaintiff] is unable to leave the
ground, even on a step stool. He declared this to be his most significant
restriction, which precludes him from returning to work as a Commercial
Driver.
(Id. (emphasis added)).
When referencing Plaintiff’s medical records, Ranheim stated that
[p]ermanant restrictions were assigned on February 6, 2012, based upon the
work-condition discharge report. [Plaintiff] is capable of working full-time
within the Light to Medium physical demand level as defined by the
Dictionary of Occupational Titles. [Plaintiff] is able to lift up to 50 pounds
occasionally, floor to waist; 35 pounds occasionally, waist to eye level; 35
pounds bilateral carry; 40 pounds unilateral carry; and 10 pounds
occasionally overhead.
14
(R. 466–67). Ranheim also believed that “exploration of alternative vocational options is
reasonable and necessary,” given Plaintiff’s physical limitations, high school education,
and relevant job experience. (R. 469–70). She also believed Plaintiff’s job searches
were hampered because he
was provided traditional services with regard to job seeking skills training
rather than a customized search. According to [Plaintiff], he did not receive
training relative to the American With Disabilities Act (ADA), or
instruction on how to communicate his physical and cognitive abilities to
potential employers. [Plaintiff] was not aware of the definition of an
essential function and other requirements to disclose his restrictions as it
relates to the essential function of the job.
(R. 473).
For these reasons, Ranheim concluded that Plaintiff “has permanent restrictions
that preclude him from performing his pre-injury occupation. In my opinion, [Plaintiff]
has transferable skills and with proper direction in rehabilitation and job placement
services, . . . would likely be working in some capacity.” (Id.) Ultimately, Ranheim
concluded that “[b]ased upon all of the medical information provided, [Plaintiff]
possesses the ability to work full-time with restrictions.” (R. 472).
In October 2015, Plaintiff was evaluated at Courage Kenny Rehabilitation
Institute’s Vocational Services Department. (R. 404–15). Leanne Jackson-Butala, MS,
CRC, noted that “[Plaintiff] express[ed] an interest in working with helping dogs . . . .
His work preferences included $20 an hour work wage, but how much he could work, he
did not know . . . . He would like working outdoors part of the time.” (R. 406).
15
Plaintiff was given a number of objective tests, including the Independent
Problem Solving (“VALPAR No. 6”) test. (R. 407–11). Jackson-Butala noted
Plaintiff’s poor performance on the VALPAR No. 6 test, also stating that Plaintiff
took the test left handed. 5 Jackson-Butala further discussed Plaintiff’s testing at
the center, specifically noting that
[h]e was given a 10 minute break in the morning and afternoon, and a 30
minute lunch break. . . . Once [he] started on a test or work sample, he worked
steadily, although [he] could be seen shifting his weight when standing for 20
minutes, and at times, moving his neck and head, and rotating his right shoulder
and stretching it above his head. When he was done with the six hour day, he was
done, and ready to go home.
(Id.).
Jackson-Butala opined that Plaintiff “appears quite limited” in his ability to
“return to a job at his previous wage or any job that offers suitable and gainful
employment. He does not appear competitively employable.” (R. 413). In support of
this opinion, Jackson-Butala stated certain types of work, such as working with data, are
not suitable “considering his lack of experience and interest.” (R. 414). Jackson-Butala
also noted that Plaintiff’s performance on the VALPAR No. 6 test suggested Plaintiff fell
“far below competitive entry level standards.” (R. 411). In addition, based on Plaintiff’s
interests in working with dogs, Jackson-Butala suggested that Plaintiff volunteer “starting
a couple hours a week as a way to possibly gain a positive and current work-life
experience, references, stamina, confidence and for career exploration.” (Id.) Once
Plaintiff “finds he has the stamina, interest and ability,” Jackson-Butala suggested that
5
Plaintiff is right-hand dominant. See, e.g. (R. 87, 849).
16
Plaintiff utilize the State of Minnesota Vocational Rehabilitation Services for long-term
job placement. (R. 414–15).
II.
DISCUSSION
A.
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). “Substantial evidence is less than a preponderance but is enough that a
reasonable mind would find it adequate to support the Commissioner’s conclusion.”
Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002) (citing Prosch v. Apfel, 201
F.3d 1010, 1012 (8th Cir. 2000)). The Court must examine “evidence that detracts from
the Commissioner’s decision as well as evidence that supports it.” Id. (citing Craig v.
Apfel, 212 F.3d 433, 436 (8th Cir. 2000)). That said, the Court may not reverse the ALJ’s
decision simply because substantial evidence would support a different outcome or the
Court would have decided the case differently. Id. (citing Woolf v. Shalala, 3 F.3d 1210,
1213 (8th Cir. 1993)). In other words, if it is possible to reach two inconsistent positions
from the evidence, and one of those positions is that of the Commissioner, the Court must
affirm the decision. Robinson v. Sullivan, 956 F.2d 836, 838 (8th Cir. 1992).
B.
Analysis
Plaintiff raises a single argument in his motion for summary judgment: that
the ALJ erred by failing “to properly evaluate vocational testing performed by Courage
17
Kenny that demonstrated [Plaintiff] is not able to engage in competitive employment.” 6
See (Pl.’s Mem. in Supp. at 14–17). Plaintiff argues that “[t]he Courage Kenny report is
also consistent with other evidence in the record.” (Id. at 17).
1.
Courage Kenny Report
Plaintiff essentially argues that the Courage Kenny report was entitled to
deference because the Institute was obviously respected by another vocational expert,
Ms. Ranheim, who had suggested that “Plaintiff would benefit from services from the
Courage Kenny Rehabilitation Institute” (id.), and the report was obviously credited by
Plaintiff’s worker’s compensation carrier, who approved his claim after receiving it. (Id.
at 17–18). Thus, Plaintiff contends that in light of the credence thus accorded to the
report by other vocational experts and the insurance carrier, the Courage Kenny report
should have been viewed by the ALJ as dispositive of the disability determination now
before the Court.
But it is well-settled that a determination in the worker’s compensation context
that a claimant is unable to work is not dispositive of the disability determination to be
made by the ALJ in the Social Security context. See Loeffler v. Massanari, 23 F. App’x
605, 606 (8th Cir. 2001) (concluding that claimant’s reliance on “statements by her
6
In his Complaint, although not in his Motion for Summary Judgment, Plaintiff also
assigns error to the manner in which the ALJ considered the opinions of certain of
Plaintiff’s treating physicians, and in particular claims that the ALJ mischaracterized the
opinions of Dr. Beniak and Dr. Lockman. (Compl. at 3). Arguably, these issues are
waived because they were not briefed in Plaintiff’s Motion for Summary Judgment. See
Hepp v. Astrue, 511 F.3d 798, 806 (8th Cir. 2008) (finding the claimant waived issues not
raised before the district court). However, in an abundance of caution, the Court will also
address these arguments herein.
18
doctors that were related to her workers’ compensation claim is misplaced because a
disability determination by another agency is not binding on the Social Security
Administration, see 20 C.F.R. §§ 404.1504, 416.904 (2001)”). Instead, so long as the
ALJ provides a reasonable basis supported by substantial evidence of record for
discrediting other evidence, the Court must defer to those determinations. See Hogan v.
Apfel, 239 F.3d 958, 962 (8th Cir. 2001) (explaining that deference to ALJ is appropriate
when ALJ explicitly discredits claimant and presents a reasonable basis for doing so).
Here, the ALJ provided many reasonable bases for her decision not to give the
Courage Kenny report controlling weight. First, the ALJ concluded that the manner in
which Plaintiff was evaluated at Courage Kenny did not comport with the medical
evidence. Specifically, the ALJ stated that the VALPAR No. 6 test, which was a critical
part of the foundation for Jackson-Butala’s determination that Plaintiff cannot be
competitively employed, was unreliable because Plaintiff took the test with his left hand
but is right hand dominant and the medical record did not support a conclusion that
Plaintiff was unable to use his right hand for this purpose. (R. 65–66). The ALJ
observed that “the medical records document primarily left hand/wrist complaints until
August 2016 7, and even then no objective findings to support right hand/wrist complaints
were noted.” (R. 65–66).
Relatedly, the ALJ also discounted the findings of the Courage Kenny evaluator
because Plaintiff’s “subjective complaints regarding his physical and mental symptoms
appear to have been accepted in full” by the evaluator, whereas the ALJ “found the full
7
The Courage Kenny evaluation was in October 2015, nearly a year earlier.
19
extent of the claimant’s subjective complaints to be unsupported by the record as a
whole.” (R. 66.) An ALJ must consider several factors in evaluating a claimant’s
subjective symptoms, in addition to whether the symptoms are consistent with the
objective medical evidence. Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984); see
also Social Security Ruling (“SSR”) 16-3p, 2016 WL 1119029, at *2 (S.S.A. Mar. 16,
2016). These factors include the claimant’s daily activities; work history; intensity,
duration, and frequency of symptoms; side effects and efficacy of medications; triggering
and aggravating factors; and functional restrictions. Polaski, 739 F.2d at 1322; SSR 163p, 2016 WL 1119029, at *5. The ALJ need not explicitly discuss each factor, Goff v.
Barnhart, 421 F.3d 785, 791 (8th Cir. 2005), however, and a court should defer to the
ALJ’s findings when the ALJ expressly discredits the claimant and provides good reasons
for doing so. Dixon v. Sullivan, 905 F.2d 237, 238 (8th Cir. 1990).
Here, the ALJ properly analyzed Plaintiff’s subjective complaints, and there is
ample evidence in the record to support the ALJ’s conclusion that Plaintiff was neither as
impaired as he alleged, nor as impaired as the Courage Kenny evaluator believed him to
be. With respect to Plaintiff’s subjective complaints regarding his physical impairments,
the ALJ pointed to inconsistencies with the medical records and with the extent of
Plaintiff’s activities of daily living. (R. 56-57, 65-66). The ALJ also found Plaintiff’s
statements regarding his alleged impairments were not consistent with other statements
he made in other settings. See (R. 55–57). For example, as it relates to Plaintiff’s wrists,
Plaintiff testified that he was incapable of using his right wrist generally and that
specifically Plaintiff did not believe he was capable of lifting any amount of significant
20
weight with his right hand. (R. 92 (“The right side don’t lift nothing anymore.”)). But
these statements are inconsistent with his statements to his occupational therapists that he
had relatively less discomfort with his right wrist when compared to his left wrist. (R.
797, 806, 810, 814, 817, 822, 825, 829–30, 832, 837–38). Further, Plaintiff’s belief that
he is not capable of using his right hand is inconsistent with the reports of his
occupational therapists that Plaintiff was using his right hand more than his left for
activities of daily living. See, e.g., (R. 853). In similar fashion, Plaintiff’s statement
about his lack of lifting capability is inconsistent with the assessments of Drs. Bowar,
Fishman, and Varecka that Plaintiff was able to return to “light” work. See, e.g., (R. 974,
978, 983). For these and other reasons, the ALJ concluded that the “evidence does not
support the claimant’s testimony regarding no ability to use the right hand for any lifting,
driving, opening a car door, starting a car, or putting gas in a car, or for any activities
whatsoever up to six times per day.” (R. 56). An ALJ may discredit a claimant on the
basis of these types of inconsistent statements. See, e.g., Edwards v. Barnhart, 314 F.3d
964, 966 (8th Cir. 2003); see also Polaski, 739 F.2d at 1322; SSR 16-3p, 2016 WL
1119029, at *5.
Similarly, the ALJ’s discussion of Plaintiff’s subjective complaints regarding his
cognitive impairments also reveals a reasonable basis founded on substantial evidence in
the record to conclude that his impairments are not as disabling as alleged. Again, the
ALJ found Plaintiff’s “wide range of reported activities, including household chores,
shopping, driving, handling his own finances, fishing, hunting, and working as a
commercial truck driver” significant in her decision to discount Plaintiff’s subjective
21
reports of the effect of his cognitive impairments. (R. 63); see also (R. 64) (referring to
Plaintiff’s “reported activities involving living with friends and family members . . .
shopping, paying his bills in person, going to the library, . . . attending medical
appointments, and pursuing extensive job search activities”). In addition, as with his
physical complaints, there were statements made by Plaintiff about his cognitive abilities
that were not consistent with his own statements made in other contexts and not
consistent with the medical records. For example, Plaintiff testified at the hearing that his
traumatic brain injury prevented him from working because he now has problems “with
impulse control, a problem with patience.” (R. 94). But the record clearly demonstrates
that Plaintiff reported to his doctors that his anger and patience issues were well
controlled after he switched medications. (R. 1388, 1453, 1479). In addition, Dr. Beniak
opined on more than one occasion that Plaintiff’s cognitive impairments were not an
impediment to his ability to work. 8 (R. 1415, 1445–46). Thus, the ALJ determination
discrediting Plaintiff’s subjective complaints regarding his cognitive impairments is also
supported by substantial evidence. Accord Polaski, 739 F.2d at 1322; SSR 16-3p, 2016
WL 1119029, at *5.
The ALJ also discounted the Courage Kenny report because the evaluator
appeared to focus on a standard of employability that, while appropriate to the workers’
compensation context, was not relevant to Social Security disability proceedings, and
8
The Court also notes that Plaintiff testified that his left eye is “shot.” (R. 93). Despite
this testimony, Plaintiff also testified that he was able to renew his driver’s license
recently and passed the vision test because he was able to use glasses. (R. 94).
Furthermore, Plaintiff’s vision “was correctable to about 20/25 in both eyes.” (R. 1410).
22
because it took into account Plaintiff’s employment preferences. (R. 65.) Plaintiff argues
that this was a mischaracterization of the Courage Kenny report. (Pl.’s Mem. in Supp. at
15–16). But even assuming, arguendo, that the ALJ mischaracterized the report in this
regard, it was only one of a number of reasons why the ALJ chose not to give substantial
weight to the findings of the Courage Kenny report. See, e.g., (R. 65–66); see also
Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir.2005) (stating deference is warranted
where ALJ’s credibility determination is supported by good reasons and substantial
evidence).
In this regard, Plaintiff’s reliance on Ekeland v. Bower, 899 F.2d 719 (8th Cir.
1990), is misplaced. In Ekeland, the Eighth Circuit concluded that the ALJ erred “by
ignoring the findings of the claimant's vocational expert and instead relying on the
testimony of a government vocational consultant.” 899 F.2d at 721. But this is not what
occurred in the instance case. Here, the ALJ received differing opinions from vocational
experts Ranheim, Jackson-Butala, and Bosch, and had to determine which, if any, she
found credible. She made that determination, and she provided a reasonable, evidencebased rationale for it. See Pearsall v. Massanari, 274 F.3d 1211, 1219 (8th Cir. 2001)
(“It is the ALJ’s function to resolve conflicts among the opinions of various treating and
examining physicians.”); cf. Ekeland, 899 F.2d at 721–22. For these reasons, the Court
finds that the ALJ did not err in choosing not to give substantial weight to the opinions
expressed in the Courage Kenny vocational report.
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2. Plaintiff’s Other Challenges to the ALJ’s Determination
Although not directly raised by Plaintiff’s motion, because of the interplay
between the opinions of certain medical providers and the Courage Kenny report, the
Court also considers the manner in which the ALJ addressed the opinions of these
physicians. Specifically, the Court concludes that the ALJ’s credibility determinations
regarding opinions rendered by Dr. Lockman and Dr. Beniak were supported by
substantial evidence in the record as a whole.
The ALJ gave little weight to Dr. Lockman’s opinion that Plaintiff was totally
disabled “due to cognitive and affective deficits,” noting that “his treatment records
contain no observations regarding specific disabling mental symptoms or limitations or
how they would preclude work.” (R. 64). The ALJ also noted that Dr. Lockman’s
opinion was premised on Plaintiff’s “‘ability to find and hold a job, and not his physical
condition.’” (Id. (quoting R. 1371)). She also described the ways in which Dr.
Lockman’s opinion—specifically regarding Plaintiff’s cognitive impairments—was not
consistent with the record evidence. (R. 63–64).
As discussed above, there is substantial evidence in the record demonstrating that
Plaintiff’s primary cognitive complaint—irritability and impulse control—was better
controlled after Plaintiff switched to Lamictal. (R. 1388, 1453, 1479). Indeed, Plaintiff
discussed this with Dr. Lockman, but Dr. Lockman’s opinions do not appear to reflect
that improvement. (R. 1479). Thus, the ALJ’s decision to give Dr. Lockman’s little
weight because it is inconsistent with other evidence is appropriate and supported by
substantial evidence. See, e.g., Wildman v. Astrue, 596 F.3d 959, 964 (8th Cir. 2010)
24
(“[A]n ALJ may discount or even disregard the opinion of a treating physician where
other medical assessments are supported by better or more thorough medical evidence, or
where a treating physician renders inconsistent opinions that undermine the credibility of
such opinions.” (alteration in original) (internal quotation marks omitted)); see also
Brown v. Astrue, 611 F.3d 941, 955 (8th Cir. 2010 (“If an impairment can be controlled
by treatment or medication, it cannot be considered disabling.” (internal quotation marks
omitted)).
The ALJ’s decision to give great weight to Dr. Beniak’s opinion that Plaintiff’s
“intellectual and cognitive capacity would not prevent him from pursuing any number of
vocational options should he be so motivated,” (R. 62–63, 1446), is likewise supported
by substantial evidence in the record as whole. For example, the ALJ noted that
Plaintiff’s test scores reported by Dr. Beniak were consistent with the results of other
similar tests administered to him, and substantial evidence in the record supports this
conclusion. Furthermore, the ALJ found significant Dr. Beniak’s comment on Plaintiff’s
poor performance on portions of the cognitive tests, which Dr. Beniak attributed to
Plaintiff’s use of his nondominant hand. (R. 63). In sum, the ALJ concluded “Dr.
Beniak’s opinion . . . is fully supported by his evaluation report, and by other cognitive
testing and observations in the record.” (Id.) The Court finds this conclusion to be
supported by substantial evidence in the record as a whole.
III.
CONCLUSION
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
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1. Plaintiff Charles A.’s Motion for Summary Judgment [Doc. No. 17] is
DENIED; and
2. The Acting Commissioner of Social Security’s Motion for Summary
Judgment [Doc. No. 19] is GRANTED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: March 25, 2019
s/ Hildy Bowbeer
HILDY BOWBEER
United States Magistrate Judge
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