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Franks v. Colvin

United States District Court, D. Minnesota

November 20, 2014

Donald Franks, Plaintiff,
v.
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.

Nicole Kim, William Morrison, and Edward Olson for Plaintiff.

Ann Bildtsen, Assistant United States Attorney, for Defendant.

REPORT AND RECOMMENDATION

FRANKLIN L. NOEL, Magistrate Judge.

Plaintiff Donald Franks seeks judicial review of the final decision of the Acting Commissioner of Social Security ("Commissioner"), 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). The parties have submitted cross-motions for summary judgment. ECF Nos. 15 and 18. For the reasons set forth below, the Court recommends that the Commissioner's motion be GRANTED and the Plaintiff's motion be DENIED.

I. INTRODUCTION

Franks filed an application for disability insurance benefits on December 5, 2010, alleging an onset date of April 10, 2009. Administrative Record [hereinafter "AR"] 126, ECF Nos. 10 and 11. Franks's application was denied initially and again on reconsideration. AR 131, 137. After holding an administrative hearing on May 30, 2012, Administrative Law Judge ("ALJ") Lisa Groeneveld-Meijer denied Franks's application for disability benefits. AR 32. On August 28, 2012, the Appeals Council denied Franks's request for review, rendering the ALJ's decision final for purposes of judicial review. AR 1-3; see 20 C.F.R. § 404.981. Pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), Franks commenced this civil action on October 21, 2013, seeking reversal of the ALJ's decision or, alternatively, a remand for further proceedings. Compl., ECF No. 1.

II. STATEMENT OF FACTS

A. Background

Franks was born on February 16, 1963 and was 47 years-old when he filed his application for disability insurance benefits on December 5, 2010. AR 187. He claims benefits should be awarded from April 10, 2009 (his alleged onset date) until December 31, 2011 (his date last insured). AR 126. Franks argues that the following conditions limit his ability to work: back, neck, shoulder, and wrist pain; nerve damage in his legs; high blood pressure; sleep apnea; depression; and an enlarged heart. AR 237. His past relevant work experience includes jobs in banking, golf course management, office management, car sales, and law enforcement. AR 63-68.

B. Medical Evidence

1. Franks's Medical Procedure History

In 1982, Franks suffered an acromioclavicular ("AC") joint separation injury to his shoulder while in the army. AR 743. He then injured his back in 1987 while playing football. Id. In 2000, Franks was involved in a rear-end motor vehicle accident that resulted in complex cervical problems. AR 1110.

Franks underwent numerous back surgeries in 1998, 2000, and 2002, including one lumbar fusion. AR 743. A February 2007 lumbar MRI showed that:

Vertical rods with pedicle screws have been placed posteriorly from L4 to the sacrum in this patient with 5 nonrib bearing lumbar type vertebrae. Metallic densities and calcification at both L4-L5 and L5-S1 interspaces. There appears to be a partial laminectomy at L4 on the left.

AR 507. The MRI also indicated that Franks suffers from degenerative disc disease. AR 507-08.

In February 2007, an x-ray of Franks's left shoulder showed "deformity and corticated ossific densities at the acromioclavicular joint likely the result of old trauma. Poorly defined soft tissue masses are suggested on the transscapular view overlying the left scapula." AR 508. A second x-ray taken a year later revealed that these issues remained unchanged. AR 506. This x-ray also showed that his left shoulder joint appeared normal. Id. Later that year, however, Franks underwent an AC joint surgery on his left shoulder. AR 743.

A January 2011 cervical MRI indicated:

1. Cervical spondylosis with multilevel central canal narrowing.
2. At C6-C7 disc bulge osteophyte complex flattens central surface of the spinal cord. Moderate central canal and right foraminal stenoses at this level.
3. At C5-C6 there is moderate stenosis of the right neural foramen.

AR 501-02.

On April 11, 2011, Franks underwent a cervical facet nerve radiofrequency neurotomy. AR 784. This reduced the pain in his neck and shoulder for approximately six months, but his symptoms returned thereafter. AR 1111.

2. Medical Opinion Evidence

a. Mental Assessments of Franks

Licensed psychologist Steven Carter conducted a mental consultative exam of Franks on March 28, 2011. See AR 751-58. He concluded that Franks was able to understand and retain instructions; carry out both simple as well as detailed instructions; maintain attention and concentration for at least two straight hours; sustain an ordinary routine without supervision; work in coordination with or in proximity to others without being distracted; complete a normal workday and work week without interruptions from psychologically based symptoms; interact appropriately with the public or customers; and respond to unruly, demanding, or disagreeable customers or coworkers. AR 756-57. Carter did opine, however, that Franks was unable to perform at a consistent rate without an unreasonable number of rests, due to fatigue and ongoing pain. AR 756.

On April 6, 2011, B. Johnson, Ph.D., conducted a psychiatric consultative exam on Franks. AR 767. At this consultation, Franks reported that he was able to care for his pet, prepare simple meals, do laundry and other household chores, complete yard work, drive, shop, and manage finances. AR 779. Based on his examination, Johnson determined that Franks had mild limitations on his ability to do daily living activities; mild difficulties in maintaining social functioning; mild difficulties in maintaining concentration, persistence, and pace; and no episodes of decomposition. AR 777. Therefore, according to Dr. Johnson, Franks's impairments were not severe. AR 767. He also noted that Franks was able to understand and remember short and simple instructions, maintain attention and concentration for at least two hours, and complete a normal workday and workweek without interruptions. AR 779. Dr. Johnson concluded his report by opining that Franks's report of his pain symptoms was only partially credible, as he described daily activities that were not significantly limited in relation to his alleged symptoms. Id.

b. Physical Assessments of Franks

On March 9, 2007, Dr. James Stevenson, a Minnesota Disability Determination Services physician, conducted a consultative physical RFC assessment of Franks. AR 939. Dr. Stevenson determined that Franks could occasionally lift up to twenty pounds; frequently lift up to ten pounds; stand for six hours per workday; and sit for six hours per workday. AR 940. Dr. Stevenson indicated that due to Franks's back pain and prior surgeries, his ability to push and/or pull with his upper and lower extremities was limited. AR 940.

Dr. Peter Marshall conducted a general medical examination of Franks at the Minneapolis VA hospital on June 19, 2007. AR 424. He determined that Franks was limited to lifting twenty pounds occasionally and forty pounds maximum. AR 431. He also believed Franks should limit himself to only occasional bending and twisting and refrain from lifting anything over his head. AR 431-32. Dr. Marshall opined that Franks should not do any overhead lifting, and he should only occasionally lift objects with his left shoulder. AR 432. Although Dr. Marshall believed Franks could not perform his prior work as a police officer, he did believe Franks could perform sedentary and light work with the above limitations. Id.

On March 18, 2011, Dr. Neil Johnson conducted a consultative medical evaluation of Franks, where he concluded that Franks suffered from severe pain syndrome. AR 747. Franks's neck and back were tender and pain made it difficult for Dr. Johnson to complete the examination. Id. Dr. Johnson did not, however, find any evidence of nerve root irritation. Id. Dr. Johnson also observed that Franks appeared depressed. Id.

A physical RFC assessment of Franks was conducted on March 30, 2011, by Dr. Gretchen Niemioja, a Minnesota Disability Determination Services physician. See AR 759-66. While Franks was able to ambulate around the room without using a cane during the examination, he did so in pain. AR 766. Dr. Niemioja observed that Franks had pain in his neck, back, and left shoulder; moderate difficulty with heel and toe walking; and severe difficulty squatting. Id. She also noted that his range of motion was severely limited in cervical extension and significantly limited in cervical rotation. Id. His sensory and motor strength in his arms and legs, however, appeared to be intact. Id.

Based on her examination of Franks, Dr. Niemioja determined that he was able to occasionally lift up to twenty pounds; frequently lift up to ten pounds; stand for at least two hours per workday; sit for six hours per workday; push/pull without limitations; and occasionally climb ramps or stairs, balance, stoop, kneel, crouch, and crawl. AR 760-61. Additionally, Dr. Niemioja opined that Franks should avoid all machinery due to his limited range of motion in his neck, and he should never climb ladders, ropes, or scaffolding. AR 761, 763. Finally, she observed that while Franks had limitations on his reaching ability (including overhead reaching), he had no other manipulation (e.g., handling, fingering, feeling), visual, or communication limitations. AR 762-63.

Dr. Niemioja concluded her assessment of Franks by noting that while Franks's impairments could reasonably be expected to produce his alleged symptoms, "the intensity of the symptoms and their impact on functioning are not consistent with the totality of evidence. [Franks's] alleged symptoms/limitations are greater than [what was] consistent with evidence in [his medical records]." AR 764.

On July 25, 2011, Dr. Stefan Kaiser conducted a consultative disability evaluation of Franks. AR 1117. In his report, Dr. Kaiser stated that he believed Franks's representations as to his pain may be motivated by monetary gain. AR 1122. Kaiser observed, "[A]lthough the patient states significant left lower extremity symptoms and back pain on his exam, he clearly has intact function; however, he exhibited signs of symptom magnification (if not frank malingering) during the exam." Id. Dr. Kaiser questioned why Franks had not received aggressive diagnostic imaging or treatments if the pain was as severe and limiting as Franks claimed. AR 1123. Dr. Kaiser concluded that motivation was a factor in Franks's inability to find work, as Franks did not have any significant limitations that would preclude him from seeking competitive employment. Id. Nevertheless, Dr. Kaiser recommended the following restrictions: lifting no more than thirty pounds, limit pushing/pulling to no more than forty pounds, and avoid overhead reaching and climbing. Id.

Dr. James Montana, one of Franks's treating physicians, submitted a letter on September 13, 2011 in support of Franks's application for disability benefits. AR 878. Dr. Montana indicated that he had treated Franks since 2003, and Franks suffered from chronic neck and back pain as well as lumbar and cervical spondylosis. Id. Due to these conditions, Dr. Montana opined that Franks was not employable. Id. On September 22, 2011, Dr. Jeffrey Wilt, another treating physician, submitted a near identical letter in support of Franks's application. AR 880. Like Dr. Montana, Dr. Wilt believed that Franks was not employable due to his lumbar and cervical spondylosis. Id.

Finally, on September 19, 2011, Charlotte Ackerley, a close friend of Franks, wrote a letter in support of Franks's application for disability benefits. AR 879. Ackerley indicated that she helps Franks with household chores (e.g., cleaning, laundry, and making beds). Id. Her son also helps Franks with lawn care, snow removal, and other heavier jobs. Id. She noted that Franks is unable to sit for long periods of time without getting extremely sore and stiff. Id. She also stated that Franks has difficulty walking due to his back pain and some numbness in his left foot. Id. According to her letter, Ackerley massages Franks's legs, back, shoulders, and neck almost nightly in order to relieve muscle soreness. Id.

C. The Administrative Hearing

The administrative hearing was held on May 30, 2012. AR 32. Franks was represented by counsel and testified on his own behalf. Id. A vocational expert also testified at the hearing. Id.

1. Franks's Testimony Regarding Pain and Daily Activities

Franks testified that due to his back injury and subsequent lumbar fusion, he has pain and limited mobility in his back. AR 68-69. He stated that his back pain makes it difficult for him to sit or stand for extended periods of time - he can usually only stand between ten and fifteen minutes before it becomes problematic. Id. According to Franks, this pain also makes driving a vehicle challenging, and therefore he limits his driving to approximately two hours per week. AR 71-72. Franks also claimed to have daily back spasms and some paralysis in his left leg. AR 69, 76-77.

With regards to his neck pain, Franks stated that it has continually worsened since his car accident in 2000. AR 72. He was told by Dr. Montana that the discs in his neck were pushing on his spinal column and nerves were coming out of his neck at multiple levels. AR 73. He said he has undergone five or six neurotomy procedures to help manage the pain, but these procedures only provide temporary relief. Id. As to Franks's shoulder pain, Franks stated that his left AC joint has been cut in half, which causes him daily pain. Id. To manage this pain, Franks reported receiving steroid injections. Id.

According to Franks, his pain can be very inconsistent - some days he is in pain from the moment he wakes up, and other days he will feel good for a few hours. AR 68. He indicated that he typically has more bad days than good days. AR 70. On a good day, Franks testified that he could stand for about four hours during an eight hour workday, but he ...


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