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Tresise v. Berryhill

United States District Court, D. Minnesota

February 26, 2016

Casey Mitchell Tresise,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.

          James H. Greeman, Greeman Toomey, for Plaintiff Casey Mitchell Tresise

          Pamela Marentette, United States Attorney for Defendant Nancy A. Berryhill

          ORDER

          HILDY BOWBEER, UNITED STATES MAGISTRATE JUDGE [1]

         Pursuant to 42 U.S.C. § 405(g), Plaintiff Casey Mitchell Tresise seeks judicial review of a final decision by the Acting Commissioner of Social Security denying his application for social security disability insurance (DIB) and supplemental security income (SSI). The matter is now before the Court on the parties' cross-motions for summary judgment [Doc. Nos. 11, 17]. As set forth fully below, the Court grants in part and denies in part Tresise's motion for summary judgment, denies the Government's motion for summary judgment, and will remand the matter to the Social Security Administration for further proceedings consistent with this Order.

         I. Procedural Background

         Tresise applied for DIB and SSI benefits on February 8, 2013, alleging a disability which began on January 15, 2009. (R. 13.) His applications were denied initially on August 1, 2013, and were again denied after reconsideration on March 12, 2014. (Id.) Tresise then requested a hearing to review the denial of his benefit claims. (Id.) An administrative law judge (ALJ) convened a hearing on March 12, 2015, at which vocational expert Beverly Solyntejis testified. (Id.) At Tresise's request, a supplemental hearing was later held on May 18, 2015 to determine whether jobs suitable for Tresise existed in the national economy; vocational expert Jessie Ogren testified at that hearing. (R. 75.) Assessing Tresise's claims under the five-step sequential evaluation procedure outlined in 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4), the ALJ determined that Tresise was not disabled within the meaning of the Social Security Act. (R. 13-21.)

         At step one, the ALJ determined that Tresise had not engaged in substantial gainful activity since the alleged onset date of January 15, 2009. (R. 15.) At step two, the ALJ determined that Tresise had severe impairments from chronic obstructive pulmonary disease and alcohol abuse. (R. 16.) The ALJ found at the third step, however, that no impairment or combination of impairments met or equaled the severity of an impairment listed in 20 C.F.R. part 404, subpart P, appendix 1. (Id.) At step four, the ALJ determined that Tresise retained the residual functional capacity (RFC) to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b). (R. 17.) More specifically, the ALJ found that Tresise's health limitations confine him to work that involves carrying no more than 20 pounds occasionally and up to 10 pounds frequently, standing or walking no more than six hours in an eight-hour day, and sitting up to six hours in an eight-hour day. (Id.) Additionally, the ALJ found that Tresise can occasionally use ramps or stairs and is able to balance, reach overhead, stoop, kneel or crouch, but cannot crawl or climb ladders, ropes or scaffolds. (Id.) Tresise's respiratory limitations further require that he avoid exposure to extreme heat, extreme cold, humidity, fumes, dust, gases and smoke. (Id.) Based on these limitations, the ALJ concluded that Tresise could not perform his past job as an asbestos removal supervisor but could make a successful adjustment to work as an assembler, collator operator, inserting-machine operator, hand packager, or inserter. (R. 19-21.) Therefore, because Tresise was able to work in certain positions available in the American economy, the ALJ determined at step five that Tresise is not disabled. (R. 20.)

         Tresise requested the Appeals Council review the ALJ's adverse decision. (R. 1.) In that request, Tresise submitted new evidence from Abbott Northwestern Hospital pertaining to shoulder repair surgery he underwent on July 30, 2015 - a few weeks before the ALJ rendered his decision on August 18, 2015. (R. 4, 559-577.) After reviewing the request, the Appeals Council found no reason under its rules to review the ALJ decision and denied Tresise's request. (R. 1.) Notably, the records submitted to the Appeals Council were not available to the ALJ at the time his decision was rendered, meaning the ALJ's decision was not informed by the most recent medical records pertaining to Tresise's shoulder. See (Pl.'s Mem. Supp. Summ. J. at 14 n. 4. [Doc. No. 10].)

         Tresise then initiated this action for judicial review of the Commissioner's decision pursuant to 42 U.S.C. § 405(g). Tresise contends the ALJ erred when he failed to identify several severe impairments, contrary to substantial evidence, which resulted in a RFC assessment that significantly overstates the type of work Tresise is capable of performing. (Pl.'s Mem. Supp. Summ. J. at 9.) Tresise submits the ALJ also erred in assessing his RFC. According to Tresise, an appropriate RFC assessment would have included the severe impairments of gout, neuropathy, and left shoulder rotator cuff tear with severe joint arthritis. (Id.) Incorporating those limitations, Tresise asserts his RFC assessment would have precluded light work and resulted in a finding of disability due to Tresise's advanced age. (Id.)

         The Court has reviewed the entire administrative record, giving particular attention to the facts and records cited by the parties. The Court will recount the facts of record only to the extent they are helpful for context or necessary for resolution of the specific issues presented in the parties' motions.

         II. Standard of Review

         Judicial review of the Commissioner's denial of benefits is limited to determining whether substantial evidence on the record as a whole supports the decision. 42 U.S.C. § 405(g). Substantial evidence means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, ” Davidson v. Astrue, 578 F.3d 838, 841 (8th Cir. 2009) (quoting Richardson v. Perales, 402 U.S. 389 (1971)), meaning that less than a preponderance of the evidence is needed to meet the standard. Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002). The Court must examine “evidence that detracts from the Commissioner's decision as well as evidence that supports it.” Id. (citing Craig v. Apfel, 212 F.3d 433, 436 (8th Cir. 2000)). The Court may not reverse the ALJ's decision simply because substantial evidence would support a different outcome or the Court would have decided the case differently. Id. (citing Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993)). Thus, if it is possible to reach two inconsistent positions from the evidence and one of those positions is that of the Commissioner, the Court must affirm the decision. Robinson v. Sullivan, 956 F.2d 836, 838 (8th Cir. 1992).

         A claimant has the burden to prove disability. See Roth v. Shalala, 45 F.3d 279, 282 (8th Cir. 1995). To meet the definition of disability for DIB purposes, the claimant must establish that he is unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The same standard applies to SSI claims. See 42 U.S.C. § 1382c(a)(3)(A). The disability, not just the impairment, must have lasted or be expected to last for at least twelve months. Titus v. Sullivan, 4 F.3d 590, 594 (8th Cir. 1993).

         In reviewing the Commissioner's denial of a disability claim, the Court assesses whether the disability determination is supported by substantial evidence at each step of the Commissioner's five-step sequential evaluation process. See 20 C.F.R. §§ 404.1520, 416.920. At the first step, the Commissioner determines if the claimant is working, i.e. “engaging in substantial gainful activity.” 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is engaging in substantial gainful activity, he is not disabled and the analysis ends there. 20 C.F.R. §§ 404.1520(b), 416.920(b). At step two, the Commissioner assesses whether the claimant has a medically determinable impairment that is “severe, ” meaning it limits his ability to perform basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c). If the claimant's impairment or set of impairments are not severe, the claimant is not disabled. Id. At step three, the Commissioner determines whether the claimant's impairment qualifies as a “listed impairment, ” 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv), i.e. an impairment that per se qualifies a claimant for disability. 20 C.F.R. §§ 404.1520(d), 416.920(d). If the claimant's impairment is not listed, however, the ALJ then proceeds to assess the claimant's RFC based on “all the relevant medical and other evidence in [the] record.” 20 C.F.R. §§ 404.1520(e), 416.920(e). At step four, the Commissioner considers the claimant's RFC and determines if the claimant is able to meet the demands of the job he or she held prior to the outset of the impairment. 20 C.F.R. §§ 404.1520(f), 416.920(f). If the claimant is capable of working in his former job, the claimant is not disabled. Id.

         Lastly, at step five, the Commissioner assesses whether the claimant is able to adjust to any other work, taking into account his RFC, age, education and work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If the claimant is able to do other work, she is not disabled. 20 C.F.R. §§ 404.1520(g), 416.920(g). Unlike the previous steps where the claimant has the burden of proof, at this last step the Commissioner has the burden of proving the claimant is not disabled due to the availability of other work. 20 C.F.R. §§ 404.1512(b)(3), 416.912(b)(3). In particular, the ALJ must show that other work exists in significant numbers in the national economy that the claimant can do the work given his RFC, age, education, and work experience. 20 C.F.R. §§ 404.1512(b)(3), 416.912(b)(3).

         III. Discussion

         A. Whether the ALJ Erred in Determining Tresise's Severe Impairments

         Tresise argues that the ALJ erred at step two by failing to identify Tresise's neuropathy, gout, torn left rotator cuff and shoulder arthritis as severe impairments. (Pl.'s Mem. Supp. Summ. J. at 10-12.) In making a disability determination, the Commissioner must consider the medical severity of a claimant's health conditions to determine if any impairment or combination of impairments limits her ability to do basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c). To rise to the level of “severe, ” the impairment must have lasted or be expected to last for a continuous period of at least 12 months. 20 C.F.R. §§ 404.1509, 416.909. The claimant's burden to demonstrate a severe impairment is not great; a disability claim may be terminated at step two “only when the claimant's impairment or combination of impairments would have no more than a minimal impact on her ability to work.” Caviness v. Massanari, 250 F.3d 603, 605 (8th Cir. 2001). Here, the ALJ determined Tresise suffered from two severe impairments: alcohol abuse and chronic obstructive pulmonary disease. (R. 16.) All other alleged impairments were not severe, according to the ALJ, because they have either been well managed by treatment, have lasted less than a year, lacked formal diagnosis by a medical source, or did not significantly impact his ability to work. (Id.) Tresise argues the ALJ's decision to reject his other claimed severe impairments at step two was not supported by substantial evidence given the strength of the record supporting those claims.

         Tresise specifically argues that the ALJ erred when he acknowledged Tresise had been diagnosed with sensorimotor polyneuropathy in February 2015 but nevertheless determined it was not a severe limitation because it had not lasted for the required 12-month period of time. (R. 16, 524.) Polyneuropathy is a general term for a “disease process involving a number of peripheral nerves.” Stedman's Medical Dictionary 1536 (28th ed. 2006). Sensorimotor polyneuropathy, then, is a disease affecting nerves in a way which limits their ability to experience sensations or cause muscle fibers to contract. Id. at 1229, 1749. Therefore, a person suffering from sensorimotor polyneuropathy may have difficulty walking and experience muscle weakness, numbness or tingling. See Sprenger v. Fed. Home Loan Bank of Des Moines, No. 4-99-cv-10055, 2000 WL 33361996, at *4 (S.D. Iowa July 25, 2000) (noting that peripheral neuropathy - another term for sensorimotor neuropathy - can “substantially limit a person's ability to engage in various physical activities”); see also Potter v. Astrue, No. 4:10-cv-01120, 2011 WL 2456714, at *3 (E.D. Ark. May 24, 2011). Here, Tresise points to two items in the record to argue the ALJ improperly concluded his neuropathy had lasted for less than one year. Tresise first notes that medical records indicate he had experienced foot numbness dating back to September or October ...


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