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Carrels v. Colvin

United States District Court, D. Minnesota

August 11, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

Jeffrey D. Schiek, Philip G. Villaume for Plaintiff.

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


FRANKLIN L. NOEL, Magistrate Judge.

Plaintiff Anthony W. Carrels (Carrels) seeks judicial review of the final decision of the Commissioner of Social Security, who denied his application for Disability Insurance Benefits. The matter was referred to the undersigned United States Magistrate Judge for Report and Recommendation pursuant to 28 U.S.C. § 636 and Local Rule 72.1. This Court has jurisdiction over the claim pursuant to 42 U.S.C. § 405(g) and Fed.R.Civ.P. 73. The parties have submitted cross motions for summary judgment. ECF Nos. 8, 10. For the reasons that follow, it is this Court's recommendation that both motions be GRANTED in part and DENIED in part.


Carrels applied for Disability Insurance Benefits on November 23, 2010, alleging a disability onset date of February 26, 2008. Administrative Record (hereinafter "AR") 145. Carrels' application was denied initially and again on reconsideration. AR 77, 83. Carrels then filed a request for a hearing, which was held on May 21, 2012. AR 32, 86. The Administrative Law Judge (hereinafter "ALJ") denied Carrels' application for benefits in a decision issued June 6, 2012. AR 14. Carrels appealed the ALJ's decision, and the Appeals Council denied Carrels' request for review. AR 1, 12. On July 3, 2013, Carrels commenced this action seeking reversal and remand of the ALJ's decision. Compl., ECF No. 1. Carrels and the Commissioner now both move for summary judgment. Mot. for Summ. J., ECF Nos. 8, 10.


A. Background.

Carrels is a 55-year-old man who last held substantial gainful employment as a carpenter. AR 145, 184. Carrels was 48 years old at the time of the alleged onset of his disability on February 26, 2008, and 52 years old at the time of the hearing on May 21, 2012. AR 145. Carrels' past relevant work experience consists entirely of working as a carpenter at a construction company Id. In February 2008, while at work, Carrels fell from a height of three to five feet off of a scaffolding structure, striking his head. AR 367. Carrels briefly lost consciousness and was transported to the emergency room. Id. As a result of the fall, Carrels suffered a variety of injuries. AR 380-81.

Carrels returned to work sometime after the incident, working about two hours a day three, non-consecutive, days a week. AR 40. By June 2009, Carrels had progressed to four hours a day, and by October 2010, he was working three eight-hour days, on occasion consecutively. AR 401, 566. Carrels' employment was terminated in December 2010. AR 42.

Carrels' asserts that he is disabled due to (1) short term memory loss; (2) shoulder injuries; (3) wrist injuries; (4) hip injuries; (5) depression; (6) lack of comprehension; (7) headaches; (8) sleepiness; (9) anger; (10) problems driving; and (11) a combination of these impairments. AR 183.

B. Medical evidence.

1. Initial accident and recovery: February 2008 to March 2009.

On the date of the accident, February 26, 2008, Carrels was diagnosed with injuries to the head ("traumatic brain injury, closed, with left temporal lobe epidural hematoma and contusion of the right temporal lobe"), facial fractures ("multiple facial fractures including left orbital hematoma"), and a fractured wrist ("comminuted left distal radius intra-articular fracture") by Dr. Ballinger. AR 381. Carrels remained in the hospital for three days. AR 377, 381.

On March 25, 2008, Carrels visited Dr. Thompson due to frequent headaches. AR 367-68. Dr. Thompson determined that Carrels had vertigo, but assuming treatment of the vertigo, Dr. Thompson saw "nothing from the traumatic brain injury that will limit him" in his return to work. AR 368. Regarding the headaches, Dr. Thompson recommended taking eight Tylenol a day and eating soft foods. Id. Six days later, Carrels returned to the Neurosurgery Division of the Mayo Clinic for a check-up regarding his brain injuries. AR 363. Dr. Utter's diagnosis was a "mild, closed head injury" and stated that Carrels was "making a reasonable recovery" and "doing well from a neurological standpoint." Id.

On April 11, 2008, Carrels had a check-up regarding his wrist and neck injuries with Dr. Elhassan, a hand, wrist, and arm expert. AR 361. Dr. Elhassan concluded that Carrels' fractured wrist was healing slowly "because of the history of smoking." Id. Additionally, Dr. Elhassan noted that Carrels' shoulder pain might be a supraspinatus tear or a subscapularis tear. Id. Two weeks later, an MRI confirmed both tears had occurred and shortly thereafter Carrels had shoulder surgery. AR 336, 359-60.

In October 2008, Carrels first saw Dr. Allen Brown, [1] a specialist in traumatic brain injury impairment. AR 335. At the meeting Dr. Brown suggested that Carrels take over-the-counter pain medication and gradually return to work; Dr. Brown anticipated that Carrels "would be ready to resume his vocation, " despite remaining symptoms which included headaches, tinnitus, and irritability. AR 336.

In November 2008, at the request of Dr. Brown, Carrels saw a neuropsychologist, Dr. Smigielski, who observed that Carrels had "mild, but clinically significant difficulties in the neurocognitive domain." AR 326-27. Dr. Smigielski also stated that Carrels showed evidence of depression, heightened irritability, and decreased patience. Id. A Patient Health Questionnaire [hereinafter "PHQ"] was administered, and Carrels was classified as having "moderate to moderately severe depressive symptoms." AR 327. Additionally, the Montreal Cognitive Assessment was completed, and Carrels identified as having a "mild but clinically significant problem." Id. Dr. Smigielski recommended that Carrels undergo a comprehensive neuropsychological evaluation. Id.

On January 13, 2009, Dr. Smigielski performed the neuropsychological evaluation of Carrels, reporting that Carrels was "likely experiencing mild residual neurocognitive and neuropsychological consequences." AR 556. He further remarked that these consequences while "not likely to be... disabling for the patient, they are nonetheless likely to be the source of some interference in functioning in more demanding circumstances." Id. Quantitatively, Carrels obtained a full scale IQ score of 75, placing him in the 4th to 5th percentile. AR 554-55. A formal diagnosis was pronounced: cognitive disorder secondary to brain injury. AR 557.

Shortly thereafter, on January 22, 2009, Carrels began a work-hardening program, which consisted of aerobic conditioning, weight training, and stretching. AR 524. Carrels returned to Dr. Smigielski on February 18, 2009. AR 491-92. While Carrels' depression symptoms had decreased to mild to moderate, Dr. Smigielski expanded Carrels' psychological diagnosis to include adjustment disorder with depressed mood. Id.

2. Return to work: March 2009 to December 2010.

On March 24, 2009, one of Carrels' treating physicians, Dr. Gelfman, [2] noted that Carrels was doing "extremely well from a physical standpoint" and that he would not "place [Carrels] on any specific restrictions from a physical standpoint." AR 436. However, on April 14, 2009, Dr. Smigielski and Dr. Brown, among others, discussed Carrels' mental restrictions and decided that he should initially be limited to six hours of work per week. AR 427, 432.

On August 14, 2009, Carrels followed-up with Dr. Brown. AR 647. Carrels had been working 4 hours a day for three, non-consecutive days a week. Id. Carrels denied that he was having any work-performance problems, and Dr. Brown discussed with him methods by which Carrels could increase his stamina and endurance, as fatigue at work was an occasional issue. Id. By November, 2009, Carrels had increased his hours per day to 6, but developed hip pain and went to see Dr. Gelfman. AR 611. Dr. Gelfman diagnosed Carrels with "right greater trochanteric bursitis." AR 611. Dr. Gelfman prescribed Naproxen and recommended that Carrels ice his hip and stretch. Id. Carrels returned to Dr. Gelfman in April, 2010 concerning the same hip pain, and Dr. Gelfman referred him to physical therapy. AR 579.

In January 2010, Carrels returned to Dr. Smigielski. Carrels complained of mental fatigue and lack of energy, and Dr. Smigielski noted that Carrels was experiencing mood problems. AR 591-92. The PHQ classified Carrels as having moderate depression and on the Montreal Cognitive Assessment, Carrels displayed significant memory difficulties. Id. Dr. Smigielski diagnosed Carrels with (1) cognitive disorder NOS and (2) brain injury without skull fracture, late effects. AR 590. Dr. Smigielski determined that Carrels could return to work at 18 hours per week beginning the following week. AR 589.

By May 11, 2010, Carrels experienced major difficulties with his work schedule. AR 577. On a visit to Dr. Brown, Carrels reported that he was having significant trouble tolerating his work schedule and that his "circumstances contribute to problems at home." Id. Dr. Brown discussed alternative options with Carrels, such as workers compensation and disability. Id. Two months later, Carrels returned to Dr. Brown and reported that "things are stable." AR 574. Carrels attempted to work three full (non-consecutive) days at that time, but stated he was rarely able to, because he just "knew when he needed to stop." Id. On September 3, 2010, Carrels underwent surgery on his wrist for carpal tunnel syndrome. AR 534.

In late October 2010, Carrels went for a check-up with Dr. Brown. AR 569. Carrels reported things were stable, that he had been working three, eight hours day each week, and that he had even worked consecutive days, which caused him "to sleep all weekend." Id. At this point Carrels ...

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