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Jacobson v. Astrue

United States District Court, Eighth Circuit

August 6, 2013

MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant.


JANIE S. MAYERON, Magistrate Judge.

This matter is before the Court on cross-motions for summary judgment [Docket Nos. 10 and 13]. This Court has jurisdiction over the matter pursuant to 42 U.S.C. § 405(g). This matter has been referred to the undersigned Magistrate Judge for a Report and Recommendation by the District Court pursuant to 28 U.S.C. §636(b)(1)(B) and Local Rule 72.1(c).


Plaintiff George Jacobson applied for disability benefits on October 2, 2007, alleging an onset of disability beginning December 14, 2006. (Tr. 141-143). Jacobson alleged that he was disabled as a result of a heart condition, depression, anxiety and arthritis. (Tr. 176). Jacobson was last insured for disability benefits on December 31, 2012. (Tr. 149). Jacobson's claims were initially denied on December 13, 2007, (Tr. 78-80), and on reconsideration on August 5, 2008 (Tr. 95-96). Jacobson timely requested a hearing on September 22, 2008. (Tr. 13, 98). A hearing was held before Administrative Law Judge ("ALJ") Mary Kunz on May 11, 2010. (Tr. 13, 37-77). Jacobson was represented by counsel at the hearing. (Tr. 37). Jacobson testified at the hearing, as did non-examining medical expert ("ME"), Dr. Andrew Steiner, and Dr. Bill Rutenbeck, a vocational expert ("VE"). (Tr. 10-75).

On September 22, 2010, the ALJ issued her decision denying benefits. (Tr. 10-34). Jacobson sought further review of the ALJ's decision by the Appeals Council. (Tr. 8). The Appeals Council denied Jacobson's request for review, making the ALJ's decision final. (Tr. 1-3).

Jacobson sought review of the ALJ's decision by filing a Complaint pursuant to 42 U.S.C. §405. [Docket No. 1]. The parties then filed cross-motions for summary judgment. [Docket Nos. 10 and 13].


Congress has prescribed the standards by which Social Security disability benefits may be awarded. "The Social Security program provides benefits to people who are aged, blind, or who suffer from a physical or mental disability." Locher v. Sullivan , 968 F.2d 725, 727 (8th Cir. 1992); 42 U.S.C. § 1382(a). The Social Security Administration shall find a person disabled if the claimant "is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment." 42 U.S.C. § 1382c(a)(3)(A). The claimant's impairments must be "of such severity that (the claimant) is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 1382c(a)(3)(B). The impairment must last for a continuous period of at least twelve months or be expected to result in death. 42 U.S.C. § 1382c(a)(3)(A); see also 20 C.F.R. §§ 404.1509, 416.909.

A. Administrative Law Judge Hearing's Five-Step Analysis

If a claimant's initial application for benefits is denied, he or she may request reconsideration of the decision. 20 C.F.R. §§ 404.907-09, 416.1407-09. A claimant who is dissatisfied with the reconsidered decision may obtain administrative review by an ALJ. 42 U.S.C. §§ 405(b)(1), 1383(c)(1); 20 C.F.R. §§ 404.929, 416.1429. To determine the existence and extent of a claimant's disability, the ALJ must follow a fivestep sequential analysis, requiring the ALJ to make a series of factual findings regarding the claimant's work history, impairment, residual functional capacity, past work, age, education and work experience. See 20 C.F.R. §§ 404.1520, 416.920; see also Locher , 968 F.2d at 727. The Eighth Circuit described this five-step process as follows:

The Commissioner of Social Security must evaluate: (1) whether the claimant is presently engaged in a substantial gainful activity; (2) whether the claimant has a severe impairment that significantly limits the claimant's physical or mental ability to perform basic work activities; (3) whether the claimant has an impairment that meets or equals a presumptively disabling impairment listed in the regulations; (4) whether the claimant has the residual functional capacity to perform his or her past relevant work; and (5) if the claimant cannot perform the past work, the burden shifts to the Commissioner to prove that there are other jobs in the national economy that the claimant can perform.

Dixon v. Barnhart , 353 F.3d 602, 605 (8th Cir. 2003).

B. Appeals Council Review

If the claimant is dissatisfied with the ALJ's decision, he or she may request review by the Appeals Council, though review is not automatic. 20 C.F.R. §§ 404.967-404.982, 416.1467-1482. The decision of the Appeals Council (or of the ALJ, if the request for review is denied) is final and binding upon the claimant unless the matter is appealed to Federal District Court within sixty days after notice of the Appeals Council's action. 42 U.S.C. §§ 405(g), 1383(c)(3); 20 C.F.R. §§ 404.981, 416.1481.

C. Judicial Review

Judicial review of the administrative decision generally proceeds by considering the decision of the ALJ at each of the five steps. The Court is required to review the administrative record as a whole and to consider:

1. The credibility findings made by the ALJ.
2. The plaintiff's vocational factors.
3. The medical evidence from treating and consulting physicians.
4. The plaintiff's subjective complaints relating to exertional and nonexertional activities and impairments.
5. Any corroboration by third parties of plaintiff's impairments.
6. The testimony of vocational experts, when required, which is based upon a proper hypothetical question which sets forth plaintiff's impairment.

Cruse v. Bowen , 867 F.2d 1183, 1185 (8th Cir. 1989) (citing Brand v. Secretary of HEW , 623 F.2d 523, 527 (8th Cir. 1980)).

This Court's review is limited to determining whether the ALJ's decision is supported by substantial evidence in the record as a whole. 42 U.S.C. § 405(g); Bradley v. Astrue , 528 F.3d 1113, 1115 (8th Cir. 2008); Johnson v. Apfel , 210 F.3d 870, 874 (8th Cir. 2000); Clark v. Chater , 75 F.3d 414, 416 (8th Cir. 1996). "We may reverse and remand findings of the Commissioner only when such findings are not supported by substantial evidence on the record as a whole." Buckner v. Apfel , 213 F.3d 1006, 1012 (8th Cir. 2000) (citation omitted).

Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales , 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB , 305 U.S. 197, 229 (1938)); see also Culbertson v. Shalala , 30 F.3d 934, 939 (8th Cir. 1994). "Substantial evidence is less than a preponderance, but is enough that a reasonable mind would find it adequate to support the Commissioner's conclusion." Buckner , 213 F.3d at 1012 (quoting Prosch v. Apfel , 201 F.3d 1010, 1012 (8th Cir. 2000)); see also Slusser v. Astrue , 557 F.3d 923, 925 (8th Cir. 2009) (citing Gonzales v. Barnhart , 465 F.3d 890, 894 (8th Cir. 2006)) (same); Cox v. Apfel , 160 F.3d 1203, 1206-07 (8th Cir. 1998) (same).

In reviewing the record for substantial evidence, the Court may not substitute its own judgment or findings of fact for that of the ALJ. Hilkemeyer v. Barnhart , 380 F.3d 441, 445 (8th Cir. 2004); Woolf v. Shalala , 3 F.3d 1210, 1213 (8th Cir. 1993). The possibility that the Court could draw two inconsistent conclusions from the same record does not prevent a particular finding from being supported by substantial evidence. Culbertson , 30 F.3d at 939. The Court should not reverse the Commissioner's finding merely because evidence may exist to support the opposite conclusion. Buckner , 213 F.3d at 1011; Mitchell v. Shalala , 25 F.3d 712, 714 (8th Cir. 1994); see also Woolf , 3 F.3d at 1213 (the ALJ's determination must be affirmed, even if substantial evidence would support the opposite finding). Instead, the Court must consider "the weight of the evidence in the record and apply a balancing test to evidence which is contradictory." Gavin v. Apfel, 811 F.2d 1195, 1199 (8th Cir. 1987); see also Heino v. Astrue , 578 F.3d 873, 878 (8th Cir. 2009) (quoting Jackson v. Bowen , 873 F.2d 1111, 1113 (8th Cir. 1989)) (same).

The claimant bears the burden of proving his or her entitlement to disability insurance benefits under the Social Security Act. See 20 C.F.R. §§ 404.1512(a), 416.912(a); Thomas v. Sullivan , 928 F.2d 255, 260 (8th Cir. 1991). Once the claimant has demonstrated he or she cannot perform prior work due to a disability, the burden of proof then shifts to the Commissioner to show that the claimant can engage in some other substantial, gainful activity. See Goff v. Barnhart , 421 F.3d 785, 790 (8th Cir. 2005); Eichelberger v. Barnhart , 390 F.3d 584, 591 (8th Cir. 2004); Martonik v. Heckler , 773 F.2d 236, 239 (8th Cir. 1985).


A. Medical Evidence Bearing on Physical Impairments

In November 2006, Jacobson was referred by Nathan Budde, a cardiology physician's assistant, for an exercise test to address Jacobson's chest pain. (Tr. 314-15). On this test, Jacobson achieved 65% of the age-predicted maximum heart rate, 13.4 METS. (Tr. 314). On April 9, 2007 Jacobson was seen by cardiovascular specialist, Dr. Michael Thurmes, after experiencing significant angina. (Tr. 290). Jacobson told Dr. Thurmes that he was quite limited by chest pain, which most frequently occurred when he was at rest and not engaging in activity. (Tr. 290). At that time, Jacobson was smoking a pack of cigarettes a day. (Tr. 291). Jacobson underwent a coronary angiogram (Tr. 299-300) and was diagnosed with severe twovessel coronary artery disease. (Tr. 277-310). Jacobson underwent coronary bypass surgery in April, 2007. (Tr. 277-310). At a follow-up appointment after the surgery, a nurse practitioner noted Jacobson had been doing cardiac rehabilitation, but had not been attending all of his sessions. (Tr. 324).

On June 22, 2007, Dr. Thurmes saw Jacobson and noted that Jacobson presented with very obvious depression. (Tr. 328). Jacobson told Dr. Thurmes that his wife had asked him to leave the house and he thought about killing himself, but that he "was not prone to doing that now." (Tr. 328). Jacobson reported having continuing chest pain, which he thought was being brought on by stress. (Tr. 325). Dr. Thurmes was so concerned about Jacobson's depression that he arranged to have him seen by a psychologist the next available work day. (Tr. 331). Jacobson saw Dr. Lawrence Richmond on June 25, 2007, for his depression and reported that he was drinking several days per week, usually drinking to get drunk. (Tr. 345). Dr. Richmond diagnosed depression and tobacco use disorder and prescribed the antidepressant drug Paxil, which Jacobson had tolerated well in the past. (Tr. 346).

In September 2007, Jacobson attempted to commit suicide by overdosing on benzodiazepines. (Tr. 401-403). Jacobson was admitted and treated at the Monticello-Big Lake Hospital. (Tr. 401-403). Jacobson reported that he believed alcohol "had a big part" in his suicide attempt and admitted that he had been drinking five to ten beers per day. (Tr. 401, 406).

Dr. Thurmes saw Jacobson again on November 20, 2007, some two months after Jacobson's suicide attempt. (Tr. 509-513). Dr. Thurmes noted that Jacobson seemed much brighter and more cheerful and that Jacobson reported that his depression was a little better. (Tr. 509). Jacobson was having more chest pain and Dr. Thurmes recommended another stress test. (Tr. 512). This test was conducted on February 7, 2008, (Tr. 516-518), and the cardiologist recommended a coronary angiogram. (Tr. 517). The angiogram was performed but failed to disclose anything of note, and the cardiologist commented that Jacobson's ongoing chest pain was of unclear origin. (Tr. 520). Jacobson later reported to Dr. Thurmes that activities such as deer hunting and walking did not bring on the chest pain, however it would come on when he was anxious. (Tr. 522). Dr. Thurmes did not believe that Jacobson's chest pain was coronary ischemia. (Tr. 524),

Jacobson was regularly seen by Budde, the physician's assistant. Budde conducted Jacobson's pre-bypass surgery exam and (Tr. 356-360) and attempted to assist Jacobson with smoking cessation. (Tr. 368, 377). Jacobson saw Budde on January 10, 2008 for back pain and symptoms related to his heart condition. (Tr. 476). Jacobson told Budde that he was able to walk more aggressively and without feeling chest pain. (Tr. 476). Budde noted that Jacobson had an MRI that show a shallow right-sided L4-5 disc protrusion abutting but not impinging on the L5 nerve root. (Tr. 476; 500).

On January 28, 2008, Jacobson saw Budde following an increase in his chest pain. (Tr. 469-472). Budde changed some of Jacobson's prescriptions and emphasized that Jacobson needed to stop smoking. (Tr. 472). Additionally, Budde recommended lifting restrictions for four weeks to a maximum of ten pounds due to Jacobson's low back pain. (Tr. 496).

On March 3, 2008, Budde filled out a form for the Minnesota Department of Human Services on which he indicated that Jacobson was able to work eight hours a day, 40 hours a week, with a lifting restriction of ten pounds. (Tr. 700).

Dr. Charles Watts, a neurosurgeon, saw Jacobson in March 2008, for an evaluation and MRI of his cervical spine. (Tr. 707). Dr. Watts concluded that Jacobson had significant chronic mechanical neck and back pain that would best be treated through a pain management program. (Tr. 707). At the office visit with Dr. Watts, Jacobson reported having right hand numbness and neck pain. (Tr. 709). In April, 2008, Dr. Watts referred Jacobson to the MAPS pain clinic for evaluation of his lower back and right arm and hand pain. (Tr. 561-567). At the MAPS clinic, Jacobson was diagnosed with lumbar degenerative disc disease and the MAPS clinician recommended a steroid injection, which Jacobson had that day. (Tr. 567). Jacobson returned to the MAPS clinic on May 14, 2008, for an evaluation and reported that the steroid injection had helped manage his pain and the physical therapy he had been receiving had been helpful. (Tr. 568; 619-627). The MAPS clinician recommended a repeat injection and advised Jacobson to continue with physical therapy and a home exercise program. (Tr. 570). At a June 2008, follow-up, Jacobson reported that he was not doing his home exercises but felt that physical therapy had been helpful. Later that month, Jacobson reported that his pain was a one out of ten. (Tr. 587). The MAPS clinician recommended another steroid injection, which Jacobson had on June 25, 2008. (Tr. 590).

Jacobson returned for a follow-up at the MAPS clinic on July 24, 2008. (Tr. 592-595). Jacobson reported that his symptoms were 50% to 75% improved and that his pain was a one out of ten and under good control. (Tr. 592). In September 2008, Jacobson underwent a nerve conduction study at the MAPS clinic regarding his right hand. (Tr. 613-615). The study showed a moderately severe right ulnar neuropathy at the elbow with evidence of chronic axonal[1] degeneration. Also in September 2008, Jacobson was discharged from physical therapy at the MAPS clinic. (Tr. 628-629). The physical therapist noted that Jacobson met all of his physical therapy goals and that Jacobson demonstrated improved spine stabilization ability. (Tr. 629).

At an office visit with Budde on November 16, 2009, [2] Budde noted that Jacobson wanted him to fill out a disability form. (Tr. 847). Budde wrote the following in his chart notes:

I started to fill this out in regards to his ischemic heart disease and hypertension. He later stated that it was more for his depression and back pain. Discussed that I do not determine long term disability status for back pain and that his psychiatrist would have to determine his disability for his depression. Certainly he does have a degree of disability from his heart disease, but mainly due to not having it treated appropriately as he is not taking his medications and continues to smoke.

(Tr. 847).

On December 30, 2009, Jacobson saw Dr. Eric Ernst at the Minnesota Heart Clinic, where he had been treated for his coronary issues. (Tr. 646-647). Dr. Ernst noted that Jacobson was having chest pain again and that "unfortunately he continues to smoke and was noncompliant with his medications over much of the last six months."[3] (Tr. 646). Dr. Ernst recommended another stress test. (Tr. 646). The stress test was conducted on January 7, 2010, and was "essentially normal." (Tr. 652). Jacobson achieved a METS of 10.7.[4] (Tr. 655, 660).

B. Medical Evidence Bearing on Mental Impairments

1. Mark Ziebarth

Jacobson saw clinical nurse Mark Ziebarth, APRN, CNS, [5] at the Central Minnesota Mental Health Center between September 18, 2007 and June 18, 2008.[6] (Tr. 535-542; 549-550). On September 18, 2007 Ziebarth stated that Jacobson was suffering from recent severe depression and would not be able to perform any employment in the foreseeable future. (Tr. 201).

On October 1, 2007, Ziebarth noted that Jacobson had overdosed, but that had not been a problem.[7] (Tr. 542). Jacobson reported that he was not working and did not think that he could work due to his cardiac status and depression status. (Tr. 542). On October 30, 2007, Ziebarth noted that Jacobson was going to take his sons deer hunting and that he probably would not hunt, but would take them. (Tr. 540). On December 17, 2007, Jacobson reported that he was feeling more depressed, that he had been turned down for disability benefits and was "looking into some work or appealing his disability, depending on what's going on." (Tr. 538). On January 28, 2008, Ziebarth observed that Jacobson had multiple issues including health, family, medical, back and cardiac as well as depression. (Tr. 536). Ziebarth wrote "[a]t this point he is not employable in my opinion due to his depression, anxiety, cardiac disease, back pain, neuropathy, tingling, positive MRI history and getting physical therapy...." (Tr. 536). On March 24, 2008, Ziebarth noted that Jacobson had taken a welding test, but could not handle the rigors of the test and the work. (Tr. 535). Ziebarth saw Jacobson in May and June 2008, and Ziebarth noted the continued presence of chronic pain and Jacobson's alleged inability to work. (Tr. 549-550).

2. Dr. Jamie Kutz

Ziebarth referred Jacobson to Jamie Kutz, Psy.D., for psychological counseling. Dr. Kutz saw Jacobson on November 19 and 27, 2007, and January 9 and 22, 2008. (Tr. 531-534). Dr. Kutz assessed Jacobson with major depression, anxiety disorder and noted a history of attention deficit disorder. (Tr. 533). On January 9, 2008, Dr. Kutz noted that Jacobson reported a "moderate" amount of depression. (Tr. 532). On January 22, 2008, Dr. Kutz noted that Jacobson reported feeling "very depressed" but that he had ups and down and felt "ok" some days. (Tr. 531). Dr. Kutz reported that Jacobson's depression was significantly related to his family situation. (Tr. 531).

3. Psychologist Berk

MAPS psychologist Ronald Berk, M.Eq., L.P., had individual therapy sessions with Jacobson on June 2, 2008 and March 6, April 6, June 9 and December 14, 2009. (Tr. 667-678). The June 2, 2008 session appears to have been the first time Berk saw Jacobson. (Tr. 667-670). At that time, Jacobson was living with his wife and children. (Tr. 667). Berk noted that Jacobson's current sources of stress were chronic pain, economic issues and lack of a primary support group. (Tr. 667). Berk found Jacobson awake, alert and fully oriented to person, time and place. (Tr. 669). Jacobson's thought processes were logical and linear without evidence of a thought disorder. (Tr. 669). Berk noted that Jacobson was clearly depressed and diagnosed Pain Disorder with Both Psychological Factors and a General Medical Condition; Major Depressive Disorder, Single Episode, Severe; Generalized Anxiety Disorder with Panic Attacks; and Chronic Pain. Berk assigned a GAF of 48.[8] (Tr. 670),

At the appointment on March 6, 2009, Berk diagnosed Major Depressive Disorder with Associated Psychological Factors and a General Medical Condition; Major Depressive Disorder, Single Episode, Severe; Generalized Anxiety Disorder with Panic Attacks, Attention Deficit by History; and Cognitive Disorder, Not Otherwise Specified. (Tr. 671). Jacobson completed the Beck Depression Inventory[9] at that session and his score was 42, indicating severe depression. (Tr. 671). His "PHQ-9"[10] score was 21, which Berk interpreted as making Jacobson's activities of daily living extremely difficult. (Tr. 671). Berk observed that Jacobson's last suicidal thinking was in December, 2008 and he reported that his depression was neither better nor worse. (Tr. 671). Berk noted that Jacobson's speech was slow and hesitant and his ...

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