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Moore v. Berryhill

United States District Court, D. Minnesota

December 12, 2017

Aron Robert Moore, Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.

          David F Chermol, Esq., Chermol & Fishman LLC; Edward C. Olson, Esq., Disability Attorneys of Minnesota, counsel for Plaintiff.

          Pamela Marentette, Esq., United States Attorney's Office, counsel for Defendant.

          REPORT AND RECOMMENDATION

          BECKY R. THORSON UNITED STATES MAGISTRATE JUDGE.

         Pursuant to 42 U.S.C. § 405(g), Plaintiff Aron Robert Moore seeks judicial review of the final decision of the Commissioner of Social Security (“the Commissioner”) denying his application for disability insurance benefits. This matter has been referred to the undersigned for a Report and Recommendation and is before this Court on the parties' cross-motions for summary judgment pursuant to Local Rule. See 28 U.S.C. § 636; D. Minn. LR 72.1(a)(3)(D); (Doc. Nos. 15, 18). For the reasons stated below, this Court recommends that Plaintiff's Motion for Summary Judgment be granted in part and denied in part, Defendant's Motion for Summary Judgment be granted in part and denied in part, and this matter be remanded consistent with this Report and Recommendation.

         BACKGROUND

         I. Procedural History

         Plaintiff filed an application for Title II Disability Insurance Benefits (“DIB”) in February 2012. (Tr. 115, 282-85.)[1] Plaintiff's alleged onset date is April 27, 2009, and his date last insured[2] for DIB was December 31, 2014. (Tr. 115.) The Commissioner denied Plaintiff's claim initially (Tr. 160-66) and on reconsideration. (Tr. 167-70.) Upon request, an Administrative Law Judge (“ALJ”) held an initial hearing in January 2014. (Tr. 83.)

         Following the hearing, the ALJ submitted interrogatories to both physical medicine and mental health medical experts. The responses to the interrogatory requests were received and submitted into the record and proffered to Plaintiff and his representative. (Tr. 371-76; 1105-25.) The representative subsequently requested a supplemental hearing, which was held on July 28, 2014. (Tr. 45.) Plaintiff attended both hearings in person. (Tr. 45, 83.)

         During the supplemental hearing, Dr. Robert Beck, the physical medical expert, indicated that a functional capacity evaluation would help properly evaluate Plaintiff's physical conditions. (Tr. 58.) A physical consultative examination was then scheduled, and the report resulting from the examination was entered into the record and proffered to the Plaintiff's representative. (Tr. 1137-48.) Neither Plaintiff nor his representative submitted a response. (Tr. 14.) The ALJ then submitted a request for an updated interrogatory response from Dr. Beck in light of the newly submitted examination report, and Dr. Beck submitted an updated interrogatory response, which was entered into the record. (Tr. 1156-60.) Neither Plaintiff nor his representative responded to the proffered exhibit. (Tr. 15.)

         The ALJ issued an unfavorable decision on July 16, 2015. (Tr. 11-36.) Plaintiff sought review of the ALJ's decision, but the Social Security Administration (“SSA”) Appeals Council denied Plaintiff's request for review on August 22, 2016. (Tr. 1-7.) This denial made the ALJ's decision the final decision of the Commissioner. 20 C.F.R. § 404.981.

         On October 21, 2016, Plaintiff filed this action seeking judicial review pursuant to 42 U.S.C. § 405(g). (Doc. No. 1, Compl.) The parties have now filed cross-motions for summary judgment pursuant to Local Rule 7.2(c)(1). (Doc. Nos. 15, 18.) In his motion, Plaintiff alleges that the ALJ erred by: (1) failing to properly consider Dr. Bradley's opinion[3]; (2) failing to adopt all of the limitations described by Dr. Handrich[4]; (3) improperly giving substantial weight to Dr. Beck's expert medical opinion[5]; and (4) improperly finding Plaintiff did not have a closed period of disability without any supporting evidence. (Doc. No. 16, Pl.'s Mem. 6-19.) Plaintiff maintains that because of these errors, the Court should order an immediate award of benefits. (Id. at 19.) Alternatively, Plaintiff requests that this matter be remanded for further development and analysis. (Id. at 19.) Defendant disagrees and requests that the Commissioner's decision be affirmed because the ALJ's decision is legally sound and supported by substantial evidence. (Doc. No. 19, Def.'s Mem. 8-18.)

         II. General Background

         Plaintiff graduated from high school in 2002. (Tr. 309.) He worked full-time as a loader/fork lift driver at a Coca-Cola bottling plant from 1999 until 2009. (Tr. 309-10.) Plaintiff worked in shipping and receiving where he stacked things on palates, loaded and unloaded trucks, and built palates. (Tr. 310.) Plaintiff stopped working at the plant on April 27, 2009, because of a back injury. (Tr. 309.) Plaintiff was twenty-six years old on his alleged onset date. (Tr. 305.)

         Plaintiff's 2009 back injury was a disc desiccation at L4-L5 and L5-S1 with annular tears and disc herniations with nerve impingement. (Tr. 447.) He had the first of three back surgeries, a disc decompression and discectomy, on August 20, 2009. (Tr. 414, 435-36.) Plaintiff underwent a second surgery on November 23, 2009, to correct a disc herniation and a small cyst causing further impingement. (Tr. 404, 433-34.) On November 16, 2010, Plaintiff underwent his third back surgery - a spinal fusion to treat intractable back pain. (Tr. 608-11.) Plaintiff was hospitalized again from December 2 until December 8, 2010, due to a post-surgical wound infection. (Tr. 593, 650-51.)

         In addition to his physical conditions, in January 2012, Plaintiff was diagnosed with post-traumatic stress disorder (“PTSD”), a depressive disorder, and amphetamine dependence. (Tr. 665, 670.) He takes prescription medication for anxiety, depression, insomnia, ADHD, and pain. (Tr. 370.) Plaintiff testified that he used methamphetamine several times in August 2012 and underwent chemical dependency treatment as a result. (Tr. 95.) At the time of the last hearing, Plaintiff was taking prescribed methadone in decreasing doses with the goal of ending his use of the drug completely. (Tr. 53-54.)

         III. The ALJ's Findings and Decision

         On July 16, 2015, the ALJ issued a decision denying Plaintiff's application for benefits. (Tr. 11-36.) The ALJ followed the five-step evaluation process dictated by 20 C.F.R. § 404.1520(a)(4), which involves the following determinations: (1) whether Plaintiff is involved in “substantial gainful activity”; (2) whether Plaintiff has a severe impairment that significantly limits his mental or physical ability to work; (3) whether Plaintiff's impairments meet or equal a presumptively disabling impairment listed in the regulations; (4) whether Plaintiff has the residual functional capacity (“RFC”) to perform his past work; and (5) if Plaintiff cannot perform his past work, whether the government has shown that Plaintiff can perform other work, and that there is a sufficient number of those jobs available in the national economy. (Tr. 15-17); see Fines v. Apfel, 149 F.3d 893, 894-95 (8th Cir. 1998).

         At step one of the evaluation, the ALJ found Plaintiff had not engaged in substantial gainful activity since his alleged onset date of April 27, 2009. (Tr. 17.) At step two, the ALJ determined that Plaintiff had the following severe impairments:

[C]hronic low back pain with muscle spasm, spinal enthesopathy and myofascial pain, status post multiple back surgeries, including a multilevel fusion procedure for degenerative disc disease of the lumbar spine from L4 to S1, with residual right leg pain and stenosis (also described as failed back syndrome); chronic pain syndrome/pain disorder associated with both psychological and medical condition; attention deficit hyperactivity disorder, combined type; major depressive disorder, recurrent/depressive disorder, not otherwise specified (NOS); post-traumatic stress disorder (PTSD); and polysubstance dependence (methamphetamines), in remission since September 2012.

(Id.)

         Since the ALJ determined that Plaintiff had severe impairments, he continued to step three of the analysis, where a claimant has the burden to show that his impairment or combination of impairments meets or medically equals the severity of one of the listed impairments in 20 C.F.R. § Part 404, Subpart P, Appendix 1. See 20 C.F.R. § 404.1520(a)(iii). With respect to Plaintiff's back impairment, the ALJ gave great weight to Dr. Beck's opinion. (Tr. 19.) The ALJ found that the medical record showed both positive and negative straight leg raising tests, and an EMG showing mild chronic L5-S1 radiculopathy on the right, but included no reports of neurological deficits or lower extremity atrophy associated with positive straight leg raising on clinical examinations. (Id.) Thus, the ALJ found that, with respect to Listing 1.04, disorders of the spine, Plaintiff's medical record did not satisfy the types of neurological findings that are required. (Id.) The ALJ also found evidence of normal lower extremity strength, normal reflexes, normal sensation, and that the Plaintiff's fusion is solid. (Id.) In addition, the ALJ found that the Plaintiff's lower extremity pain appeared to be referred pain given the absence of objective neurological findings. (Id.) Further, with respect to Plaintiff's physical impairments, the ALJ gave little weight to the opinion of Dr. A. Neil Johnson, the physical consultative examiner, because he unduly relied on Plaintiff's subjective complaints, which were not supported by the treatment record. (Id.) The ALJ also found that Dr. Johnson's comments regarding Plaintiff's demeanor were internally inconsistent and that his comments about Plaintiff's ability to walk without a cane were both internally inconsistent and inconsistent with the treatment record. (Tr. 20.) In addition, Dr. Johnson's finding of positive straight leg testing was not accompanied by any findings of muscle atrophy, which would confirm the presence of a neurological impairment required under Listing 1.04. (Id.) Consequently, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that met the severity standard in Listing 1.04. (Tr. 19.)

         With respect to Plaintiff's mental impairments, the ALJ gave great weight to the opinion of Dr. Stevens, the mental medical expert who testified via interrogatories and at the supplemental hearing, because her opinion was well supported by the record and because Dr. Stevens was an impartial expert with knowledge of the Social Security disability requirements. (Tr. 20.) Dr. Stevens testified that the pain disorder associated with medical and psychological conditions can be evaluated under Listing 12.07. (Id.) Dr. Stevens further testified that the severity of Plaintiff's mental impairments did not meet or medically equal the criteria of Listings 12.02, 12.04, 12.06, 12.07, and 12.09. (Id.) The ALJ found this conclusion consistent with Global Assessment of Functioning (“GAF”) scores of 53 to 55[6] and treatment notes, which showed few side effects from prescribed medication. (Id.) The ALJ determined that the Plaintiff's mental impairments did not result in a marked limitation of any of the four areas of mental function, thus they did not satisfy the “paragraph B” criteria. (Tr. 20-21.) In so finding, the ALJ gave great weight to the opinions of the state agency psychological consultants because their opinions are well supported by the treatment notes and other evidence of Plaintiff's daily activities. (Tr. 21.) The ALJ also considered whether Plaintiff's impairments satisfied the “paragraph C” criteria and concluded that the evidence failed to establish the presence of the “paragraph C” criteria. (Id.) Consequently, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that met the severity standard. (Tr. 19.)

         The ALJ then determined Plaintiff's RFC. 20 CFR 404.1520(e). In determining Plaintiff's RFC, the ALJ considered first whether Plaintiff's medical impairment could reasonably be expected to produce his symptoms, and second, the extent to which the symptoms limit Plaintiff's functioning. (Tr. 22.) The ALJ found Plaintiff's “medically determinable impairments could reasonably be expected to cause the alleged symptoms, ” but that his “statements concerning the intensity, persistence and limiting effects” of the symptoms were not entirely credible. (Tr. 23.)

         In formulating Plaintiff's RFC, the ALJ considered the opinions from the many treating and non-treating medical sources and consultants. He afforded controlling weight to the opinion of Dr. Roger Handrich, the treating psychiatrist. (Id.) He stated that Dr. Handrich's “opinion regarding the severity of the claimant's psychological symptoms is consistent with his treatment notes showing improvement with use of medications, mostly stable mental status, and GAF scores indicating no more than mildly to moderately severe symptoms/impairment of functioning.” (Id.) In addition, the ALJ gave some weight to the state agency psychological consultants and incorporated their opinions into Plaintiff's RFC. (Id.) The ALJ also gave great weight to the opinion of Dr. Stevens, the impartial psychological expert, as her testimony and response to interrogatories was “consistent with GAF scores and examination findings from treating source notes.” (Id.) Likewise, the ALJ afforded substantial weight to the opinion of Dr. Beck, the impartial medical expert. (Tr. 26.) The ALJ reasoned that the limitations assessed by Dr. Beck are “supported by the examination findings discussed above, with the exception of some environmental limitations which are not tied to a specific medically determinable impairment.” (Id.) Further, Dr. Beck “is the only provider to review the entire longitudinal record and he has expertise and great familiarity with Social Security disability requirements.” (Id.)

         The ALJ afforded zero weight to the opinion of Dr. Douglas Henning, the treating psychotherapist, because it was inconsistent with Dr. Handrich's opinion and findings, inconsistent with the mental health treatment and findings in the Plaintiff's medical record, and inconsistent with his own GAF score of 55. (Tr. 26.) The ALJ gave little weight to the opinion of the Plaintiff's father because it was not consistent with the objective medical findings or evidence of the Plaintiff's actual daily life activities. (Id.) The ALJ also found Plaintiff's primary care physician Dr. Nelson's opinion less persuasive and gave it little weight because the extreme limitations he suggested were not supported by his minimal treatment notes or with the findings of other treating providers. (Id.) The ALJ gave little weight to the opinion of Dr. Johnson, the consulting physician, because he “gave disproportionate weight to the claimant's subjective complaints, the report is internally inconsistent, and his findings are not consistent with any other evidence in the record.” (Id.) The ALJ also gave little weight to the state agency medical consultants as they did not take the entire medical record into consideration. (Tr. 27.)

         Weighing all of the above opinions, the ALJ determined that Plaintiff had the RFC to perform sedentary work as defined in 20 CFR 404.1567(a), but only with the following nonexertional limitations:

[Plaintiff] requires a brief 1-2 minute change of position after every 20 to 30 minutes of sitting, standing and walking; [is limited to] occasional climbing of ramps and stairs; no climbing of ladders/ropes/scaffolds; occasional balancing, stooping, kneeling, crouching and crawling; occasional use of foot controls on the right, and frequently on the left; no exposure to unprotected heights or moving machine parts; no commercial driving; occasional exposure to vibrations; limited to routine, simple and repetitive tasks; brief and superficial contact with coworkers, the public and supervisors, defined as no more than occasional contact that is short and succinct in duration that involves no more than cursory and passing contact or exchanges in work that is not primarily team oriented; not able to work at a fast production rate pace, such as an assembly line worker, but can perform goal oriented work; capable of low stress, defined as work requiring no more than occasional decision making; and no work in an environment with exposure to drugs or alcohol.

         (Tr. 22.) At step four, with the benefit of testimony from a vocational expert, the ALJ determined that Plaintiff was unable to perform any past relevant work as a ...


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