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Tesmer v. Colvin

United States District Court, D. Minnesota

March 20, 2014

Dupree Raanna Tesmer, Plaintiff,
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.

Gerald S. Weinreich, Esq., Weinrich Law Office, counsel for Plaintiff.

Ann M. Bildtsen, Esq., Assistant United States Attorney, counsel for Defendant.


JEFFREY J. KEYES, District Judge.

Pursuant to 42 U.S.C. § 405(g), Plaintiff Dupree Raanna Tesmer seeks judicial review of the final decision of the Commissioner of Social Security ("the Commissioner"), who denied Plaintiff's application for disability insurance benefits. This matter is before the Court on the parties' cross-motions for summary judgment. (Doc. Nos. 14, 26.) The parties have consented to this Court's exercise of jurisdiction over all proceedings in this case pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73. (Doc. Nos. 10, 11.) For the reasons stated below, the Court denies Plaintiff's motion for summary judgment and grants Defendant's motion for summary judgment.


I. Procedural History

Plaintiff filed an application for disability insurance benefits on September 23, 2010, alleging a disability onset date of April 1, 2009. (Tr. 128-29.) The Social Security Administration ("SSA") denied Plaintiff's claims initially.[1] (Tr. 88-92.) Plaintiff timely requested a hearing before an Administrative Law Judge ("ALJ"), and the hearing was held on March 21, 2012. (Tr. 93-94, 65-85.) On March 29, 2012, the ALJ issued an unfavorable decision on Plaintiff's application. (Tr. 48-64.) Plaintiff sought review of the ALJ's decision, but the Appeals Council denied the request for review on June 6, 2013. (Tr. 1-5.) Denial by the Appeals Council made the ALJ's decision the final decision of the Commissioner. See 20 C.F.R. § 404.981.

II. Background

Plaintiff, born on November 19, 1979, was 29 years old on her alleged onset date of disability, April 1, 2009. (Tr. 59, 128.) Plaintiff was involved in a motor vehicle accident in 1993 and injured her wrists, later requiring ligament reconstruction of the left wrist and arthroscopic debridement of the right wrist. (Tr. 406). After surgery, Plaintiff worked as a receptionist, data entry clerk, and administrative assistant. (Tr. 231.) In 2009, she alleged disability due to wrist injuries, low back pain, arthritis, knee pain, and depression. (Tr. 186.) She worked two temporary jobs after her alleged disability onset date - data entry from September 2009 through December 2009, and receptionist from July 14, 2010, through September 3, 2010. (Tr. 171.)

Plaintiff completed a function report for the Social Security Administration ("SSA") on October 18, 2010. (Tr. 216-23.) She described her daily activities, which included checking email, watching television, listening to the radio, eating, letting her dogs out, napping, and using a computer for thirty minutes. (Tr. 216.) She indicated that she had difficulty with personal care due to wrist pain, but she loaded her dishwasher once a week, and she could do laundry if someone carried the basket for her. (Tr. 217-18.) She also noted that she was able to drive, and she attended church weekly, went to the grocery store twice a week with assistance, and went to a mall every two weeks. (Tr. 219-20.)

In her function report, Plaintiff stated that back pain limited her ability to squat, bend, kneel, climb stairs, and walk. (Tr. 221.) She also stated that she was prescribed wrist braces for her wrist pain but she did not always use them. (Tr. 222.) Plaintiff indicated that she followed instructions well and got along with authority figures, but she handled stress poorly. (Tr. 221-22.)

Plaintiff's spouse, Joshua Jones, completed a third-party function report, corroborating Plaintiff's report. (Tr. 203-11.) He indicated that at times he had to help her with personal grooming. (Tr. 205.)

A. Medical Records

On February 20, 1998, two and one-half years after her wrist surgeries, Plaintiff followed up at Mayo Clinic "in anticipation of some legal event." (Tr. 406.) Her surgeon, Dr. P.C. Amadio, had last seen Plaintiff one year earlier. ( Id. ) At that time, she had wrist pain interfering with rigorous activities such as cartwheels, push-ups, and pull-ups. ( Id. ) At the February 20, 1998 meeting, her symptoms were about the same, and she wanted to know what permanent restrictions she would have using her wrists. ( Id. ) On examination, Plaintiff had some pain in her wrists but objective test results and x-rays were normal. ( Id. ) Dr. Amadio diagnosed Plaintiff with bilateral wrist pain and opined that Plaintiff could function as her comfort would permit. ( Id. ) Dr. Amadio noted that it would be reasonable for her to avoid activities that caused disabling pain, but she would not be doing any harm to her wrists by doing an activity that caused only mild discomfort, even if the activity was vigorous. ( Id. )

Nine years later, on September 13, 2007, Plaintiff was evaluated for wrist pain by Dr. James Eckenrode at Columbia Orthopaedic Group. (Tr. 372-73.) Plaintiff had full pronation and supination in her left and right wrists, and she could flex and extend her left wrist to sixty degrees. (Tr. 372.)[2] In her right wrist, she had full range of pronation and supination, and somewhat better flexion on extension. ( Id. ) The x-ray of her right wrist appeared normal, and the x-ray of her left wrist showed some significant narrowing of the lunotriquetral joint with an irregularity, probably posttraumatic arthritis. ( Id. ) In addition, there was significant overgrowth of the ulnar styloid on the left, possibly causing ulnar impingement. ( Id. ) Dr. Eckenrode noted that as a last resort, she could have an ulnar shortening osteotomy to lessen the impingement, but there were no guarantees of improvement. (Tr. 372-73.)

Several months later, Plaintiff fell and hurt her back. (Tr. 316.) She had a lumbar MRI, which showed some desiccation and degeneration of the L5-S1 disc without significant stenosis. (Tr. 324-25.)

On September 21, 2009, Plaintiff was evaluated for low back pain by Dr. Jason Rosenberg at the University of Missouri Physical Medicine & Rehabilitation Clinic. (Tr. 294-97.) Plaintiff indicated that her back pain started when she was in high school, but she had a significant exacerbation after falling on ice in 2007. (Tr. 295.) She stated that she had some improvement with an exercise program but continued to have exacerbations of pain every two or three months, and she reported that medication helped only for a few days. ( Id. ) Plaintiff also stated that she had neck and shoulder pain 90% of the time. ( Id. ) She stated that she did not sleep well and did not feel rested upon waking. (Tr. 295-96.) At the time of examination, she was employed in data entry and did not have any work restrictions. (Tr. 296.) Plaintiff also reported that she saw a therapist for depression, and she had lost thirty pounds due to stress. ( Id. )

During this visit, Plaintiff was alert, cooperative, and in no acute distress. (Tr. 296.) Dr. Rosenberg noted that her gait was normal, her muscle strength, sensation, and reflexes of the upper and lower extremities were also normal, and there was no clonus[3] at her wrists or ankles. (Tr. 297.) She had full range of motion of the lumbar spine and negative straight leg raise tests. ( Id. ) In addition, she exhibited fourteen fibromyalgia tender points. ( Id. ) Dr. Rosenberg's assessment was chronic pain/arthralgias likely secondary to fibromyalgia or somatization and depression. ( Id. ) He prescribed Cymbalta and physical therapy. ( Id. ) He also ordered lab tests to rule out a rheumatologic disorder. ( Id. )

One month later, in follow up for chronic pain, Plaintiff told Dr. Rosenberg that she improved about 25% using Cymbalta. (Tr. 292-93.) But she had been unable to increase the dosage of Cymbalta due to side effects of daytime fatigue and lightheadedness. (Tr. 292.) On examination, she was alert, cooperative, and in no acute distress. ( Id. ) Dr. Rosenberg noted that there were no abnormal findings and recommended therapy for depression, and he referred Plaintiff to a rheumatologist due to a positive FANA test.[4] ( Id. ) At that time, Plaintiff had not started physical therapy, explaining that the cost and her schedule were preventing her from doing so. ( Id. )

On November 20, 2009, Plaintiff saw Dr. Robert Conway at the University of Missouri Physical Medicine and Rehabilitation Clinic. (Tr. 288-89.) Dr. Conway noted that Plaintiff recently had lab tests with normal results, ruling out a connective tissue disorder. ( Id. ) The plan was to treat Plaintiff with physical therapy, but she stated she "has not had time to get into physical therapy but thinks she will be able to get into it in the next couple of weeks." (Tr. 289.) Plaintiff also indicated that she was still too fatigued to increase her Cymbalta. ( Id. )

On July 16, 2010, Plaintiff sought evaluation for her wrist pain with Dr. Brian Schultz at Columbia Orthopaedic Group. (Tr. 302-03.) Plaintiff reported that her left wrist pain was worse than the right wrist, and she was right hand dominant. (Tr. 302.) She told Dr. Schultz that she had fractured her wrists in an accident in 1993, and she had wrist operations at Mayo Clinic several years later, with persistent pain since then. ( Id. ) She also reported that pain was limiting her abilities, particularly employment. ( Id. ) Dr. Schultz noted that "[i]t has been recommended to her that she pursue disability status. She reports that after her original surgery she was told she had a 7% disability of the wrist." ( Id. ) Upon examination, Plaintiff had forty degrees extension of the left wrist and thirty degrees flexion, which caused quite a bit of pain. ( Id. ) In her right wrist, she had seventy degrees of extension and eighty degrees of flexion. ( Id. ) Her strength, sensation, and reflexes were normal. ( Id. ) And her left wrist x-rays showed significant degenerative changes, while her right wrist x-rays were normal. ( Id. ) Dr. Schultz agreed with Dr. Eckenrode's prior recommendation for ulnar shortening osteotomy and possible decompression, but Plaintiff stated she was not ready to do so. (Tr. 302-03.) Dr. Schultz gave Plaintiff some samples of Celebrex and also recommended taking Extra Strength Tylenol four times a day. ( Id. ) He encouraged Plaintiff to wear braces on her wrists at night, and otherwise use her wrists for range of motion as much as possible. ( Id. )

Plaintiff kept a diary of her pain from July 27-31, 2010. (Tr. 161-67.) She noted that wrist pain caused her to have difficulty holding objects, driving, typing, and sleeping. (Tr. 161-63.) In addition, low back pain made her restless at work. (Tr. 163.) She noted that wrist pain slowed her ...

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