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Jansen v. Colvin

United States District Court, Eighth Circuit

April 22, 2013

Ricky George Jansen, Plaintiff,
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.

Edward C. Olson, Esq., 331 Second Avenue South, Suite 420, Minneapolis, Minnesota 55401, on behalf of Plaintiff.

Ana H. Voss, Esq., United States Attorney's Office, 300 South Fourth Street, Suite 600, Minneapolis, Minnesota, 55415, on behalf of Defendant.


STEVEN E. RAU, Magistrate Judge.

Pursuant to 42 U.S.C. § 405(g), Plaintiff Ricky George Jansen ("Jansen") seeks review of the Acting Commissioner of Social Security's ("Commissioner") denial of his application for social security disability insurance ("SSDI"). This matter has been referred to the undersigned United States Magistrate Judge for a Report and Recommendation pursuant to 28 U.S.C. § 636 and the District of Minnesota Local Rule 72.1. The Parties filed cross-motions for summary judgment [Doc. Nos. 14 and 16]. For the reasons set forth below, the Court recommends Jansen's motion for summary judgment be denied, and the Commissioner's motion be granted.


A. Procedural History

Jansen protectively filed[1] an application for SSDI on July 14, 2008, alleging his disability began on Sept. 1, 2004. (Admin. R. at 10, 33-34). At the hearing, through his representative, he amended his alleged onset date ("AOD") to March 12, 2009. ( Id. at 34). Jansen alleges the following impairments: (1) degenerative disc disease, [2] (2) arthritic pain in multiple joints, (3) depression, and (4) memory loss. ( Id. at 98). Jansen contends that these impairments "significantly limit his ability to do basic work activities." (Pl.'s Mem. of Law in Supp. of Mot. for Summ. J., "Pl.'s Mem.") [Doc. No. 15 at 11].

The Social Security Administration (SSA) denied Jansen's claim on September 30, 2008, and it was again denied upon reconsideration four months later. ( Id. at 93, 101). Administrative Law Judge Roger W. Thomas ("the ALJ") heard the matter on August 17, 2010 and issued an unfavorable decision on October 15, 2010. ( Id. at 10-20). Jansen appealed the decision, and the Appeals Council's denial of Jansen's request for a review of the ALJ's decision review rendered the ALJ's decision the final decision of the Commissioner. ( Id. at 1-4); 42 U.S.C. § 405(g); Browning v. Sullivan, 958 F.2d 817, 822 (8th Cir. 1992). The SSA denies that Jansen has an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Admin. R. at 13). Jansen now seeks judicial review pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).

This case turns on Jansen's eligibility for SSDI benefits, because he applied for coverage only under that benefits program. (Admin. R. at 10). There are two main forms of Social Security disability benefits: SSDI and Supplemental Security Income (SSI). The purpose of the SSI program is to "assure a minimum level of income who are age 65 of over, or who are blind or disabled and do not have the sufficient income and resources to maintain a standard or living at the established Federal minimum income level." 20 C.F.R. § 416.110. In contrast, individuals earn SSDI by engaging in employment. See Program Operations Manual Sys. (POMS), RS 00391.120. (SSA, July 26, 2012); POMS, DI 0115.001.A (SSA, Oct. 11, 2012). Payment of these taxes is a payment of an insurance premium. Once the payment stops, coverage eventually ends. POMS, RS 00301.148 (SSA Jan. 13, 2006). The SSA uses the term "date last insured" ("DLI") to describe the end of a claimant's coverage. Id. Jansen's DLI is December 31, 2009. (Admin. R. at 10). Accordingly, he must establish that he became disabled before that date in order to qualify for SSDI benefits. Cox v. Barnhart, 471 F.3d 902, 907 (8th Cir. 2006).

B. Plaintiff's Testimony

As of the date of the hearing, Jansen was unemployed and lived with his wife and two school-age children. (Admin. R. at 35). Jansen was 5'9" tall and weighed 200 pounds. ( Id. ). Jansen's wife worked out of the home, and the family did not receive any financial assistance from the state or county. ( Id. at 36). Jansen had not worked since 2004. ( Id. ). Jansen stated that he has a GED, and two years of technical school training in construction and maintenance. ( Id. at 38). In the past he had problems with alcohol use, but did not use drugs. ( Id. ). He testified he quit drinking in September 2007. ( Id. ).

Asked to describe his mental and emotional problems, Jansen testified that he had significant problems with concentration. ( Id. at 37). For example, he testified that he often could not pay attention while driving. ( Id. ).

In terms of his physical health, Jansen testified that he has problems walking. ( Id. at 39). His ankles were hurt in an automobile accident in 1975, and he is "missing bones in [his] left foot." ( Id. ). Also, the tendons in his right knee were severed. ( Id. ). He has used knee braces and back braces, as well as crutches, as a result of that injury. ( Id. ). Jansen had right rotator cuff surgery, which made the pain in that shoulder go away. ( Id. ). His left shoulder, however, "doesn't reach around the way it should" and he testified he did not know what to do about it. ( Id. at 40). Jansen also had surgery on his right elbow, which alleviated his pain but left him with limited ability to straighten his right arm. ( Id. at 39).

The ALJ asked Jansen several questions about his daily activities. Jansen testified that his wife helps him put his shirts and socks on; he can bathe and feed himself. ( Id. at 40). The ALJ next asked about a remark in Jansen's medical records that referred to him "doing some part-time work as a carpenter."[3] ( Id. at 40-41). Jansen explained that he did not work as a carpenter, but he did do some woodworking as a hobby. ( Id. at 41).

The ALJ concluded his questioning by asking Jansen about his physical therapy regimen. Noting that one medical record indicated Jansen was noncompliant with his physical therapy exercises, the ALJ asked Jansen about his current physical therapy.[4] ( Id. at 42-43). Jansen said he was in physical therapy and rehabilitation. ( Id. ). He said his treatments included ultrasounds and stretching. ( Id. at 43-44).

Jansen's representative began his questioning by asking Jansen to describe the pain in his back. Jansen stated that the pain "travels down into my lower legs on both sides. Doesn't seem to be both sides at one time. It goes down-unbelievable pain in my calf and the shin...." ( Id. at 45). His back pain has kept him awake at nights, including a two-week period when he "could not sleep at all because the pain-there was no position I could get in because the pain was in my left leg." ( Id. ). To manage his pain, Jansen testified that he takes Lortab[5] on an as-needed basis. ( Id. at 46).

Jansen's representative asked several questions about Jansen's problem with concentration. Jansen said that he sometimes drives places and cannot recall how he got there, or watches television and is unable to concentrate on the show. ( Id. at 47, 48). Jansen feels his concentration problem is worsening. ( Id. at 48).

Finally, Jansen's representative questioned him about his relationships with other people. Jansen stated that he sometimes goes to parent-teacher conferences, but does not go out to dinner with his wife. ( Id. at 49-50). He rarely sees friends, goes to restaurants, or movies; he believes his wife wishes "she had a different lifestyle." ( Id. at 50). On some days when he not leave the house, and at times he does not play with his children. ( Id. at 51). There are three to four days a week when he does not leave the house. ( Id. at 52). Jansen stated that "if [he] can't do stuff physically... it makes [him] feel like less of a person or something, and then it starts affecting [him] mentally." ( Id. ).

C. Relevant Medical Evidence

1. Effect of Jansen's Previous Application on his Current Application

Jansen previously applied for SSDI in May 2005. ( Id. at 329). On that application, he alleged an onset date of November 1, 2003. ( Id. at 328). At that time, he alleged the following conditions: spinal injury; degenerative disc disease; right knee injury; left foot injury; problems with his hands; problems with his fingers; right shoulder pain; and mental depression. ( Id. at 333). He received a hearing, and was denied benefits on February 8, 2008. ( Id. at 66-81). At that earlier hearing the following impairments were considered: (1) degenerative disc disease of the lumbar spine; (2) mild degenerative arthritic changes; (3) residuals of a 1975 motor vehicle accident affecting right knee, left ankle, and left foot; (4) dysthymic disorder; (5) major depressive disorder versus alcohol-induced mood disorder with anxiety; (6) pain disorder associated with psychological factors; and (7) alcohol abuse and dependence. ( Id. at 72).

This Report and Recommendation does considered the medical evidence from that previous application for two reasons. First, Jansen did not request a reopening of that prior claim. See Robbins v. Sec'y of Health & Human Servs., 895 F.2d. 1223 (8th Cir. 1990); Hillier v. Social Sec. Admin., 486 F.3d 359 (8th Cir. 2007). Second, Jansen himself alleged a new AOD of March 12, 2009, an implicit acknowledgment of the correctness of the February 2008 decision. Accordingly, this Report and Recommendation describes Jansen's medical history from the date of the previous ALJ decision to his amended AOD of March 12, 2009, and his medical history from the period between his AOD and DLI.

2. Records Between February 8, 2008 and Jansen's AOD

The relevant medical records begin with a Mental RFC Assessment on September 23, 2008 completed by Dr. Paul L. Berry, Ph.D., L.P., ("Dr. Berry"). Dr. Berry evaluated Jansen for the following conditions: Affective Disorders (Listing 12.04); Personality Disorders (Listing 12.08); and Substance Addiction Disorders (Listing 12.09). (Admin. R. at 477-494). Dr. Berry determined that Jansen "retains sufficient mental capacity to concentrate on, understand, and remember routine, repetitive instructions, but would be markedly impaired for detailed or complex/technical instructions." ( Id. at 479). In addition, the assessment revealed that Jansen could carry out routine, repetitive tasks, handle brief and superficial contact with co-workers, and handle ordinary supervision and stress. ( Id. ). Dr. Berry evaluated Jansen as having a moderate degree of limitation in activities of daily living, social functioning, and maintaining concentration, persistence and pace. ( Id. at 491). Dr. Berry further determined that Jansen had not suffered any episodes of decompensation. ( Id. ). Dr. Berry opined that Jansen's mental health conditions did not meet or equal any listings, and that a residual functional capacity (RFC) assessment was necessary. ( Id. at 481).

There is also a two-page Physical RFC Assessment dated September 29, 2008, completed by Dr. Howard Atkin ("Dr. Atkin"). Dr. Atkin determined that Jansen has "[m]ild osteoarthritis[6] of the right wrist, acromioclavicular[7] joint, and right elbow" but concluded his diagnosed conditions are non-severe. ( Id. at 497).

Jansen visited Mesaba Clinic on February 2, 2009, complaining of low back pain, numbness in his hands and feet, and pain in his left foot. ( Id. at 510). Dr. Philip W. Holmes, ("Dr. Holmes") who treated him that day, found that Jansen "appear[ed] his stated age and [did] not appear to be in any acute distress." ( Id. ). Dr. Holmes assessed Jansen's extremities, noting a "somewhat decreased active range of motion on abduction upper extremities at the shoulders, " but "full active range of motion flexion/extension of the upper and lower extremities at the elbows and knees." ( Id. ). During that visit, Jansen requested a physical therapy referral and information about physical therapy exercises to do at home. ( Id. at 511). Jansen returned to Dr. Holmes on Febraury 19, 2009, with a slight limp, and "complaining of continued pain in his left buttock region radiating down to his left foot." ( Id. at 508).

On his February 2, 2009 consult with Dr. Holmes, Jansen "appear[ed] to have some major depression" and received a prescription for Cymbalta, an anti-depressant. ( Id. at 511). At his follow-up visit on February 19, 2009, he was not sure if his Cymbalta was helping or not, but Dr. Holmes informed him that the drug can take more than a month to become fully effective. ( Id. at 508).

Jansen participated in a physical therapy assessment with Craig Petroske, P.T., ("Petroske") in February 2009. ( Id. at 531). Petroske's Preliminary Physical Therapy Evaluation dated February 10, 2009 reports that Jansen has "significant crepitus"[8] in his acromioclavicular joint, but no tenderness. ( Id. ). In addition, Petroske described Jansen's range of motion as "grossly within functional limits and manual muscle testing is functional." ( Id. )

Instead of regular physical therapy appointments, Jansen requested a home exercise program that would enable him to do exercises independently, so Petroske showed him some techniques to target the pain in his shoulder and lower back. ( Id. at 532). His functional goals were to be "independent and compliant with [his] home exercise program" and "independent in the self-management of his symptoms" through his home exercise. ( Id. ).

3. Medical Records Between Jansen's AOD and DLI

Jansen's mental health care provider during the relevant period was Robert Stehlin, M.A. ("Stehlin"). Stehlin submitted a letter dated March 12, 2009 stating that Jansen arrives for his appointments "looking disheveled, unshaven, and sleepy, " and has "poor social skills." ( Id. at 519). Stehlin wrote that Jansen's physical pain affects his ability to pay attention. ( Id. ). Stehlin also reported that "Jansen's pain, lack of energy and depressed mood have seriously ...

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