United States District Court, D. Minnesota
E. RAU, UNITED STATES MAGISTRATE JUDGE
to 42 U.S.C. § 405(g), Plaintiff James Brink
(“Brink”) seeks review of the Acting Commissioner
of Social Security's (the “Commissioner”)
denial of his application for disability insurance benefits
(“DIB”). See (Compl.) [Doc. No. 2];
(Admin. R.) [Doc. No. 11 at 98]. The parties filed
cross-motions for summary judgment. (Pl.'s Mot. for Summ.
J.) [Doc. No. 14]; (Def.'s Mot. for Summ. J.) [Doc. No.
16]. For the reasons set forth below, the Court denies
Brink's Motion for Summary Judgment and grants the
Commissioner's Motion for Summary Judgment.
filed for DIB on May 6, 2013, citing an alleged onset date
(“AOD”) of April 1, 2013. (Admin. R. at
155). Brink's application identified disabilities due to
a spine disorder, spinal fusion, disc problems, laminectomy,
pinched nerve in neck, numbness in arm and leg, and several
bulging discs. (Id.). Brink's claims were denied
initially and upon reconsideration. (Id. at 165,
167). Following a hearing, the administrative law judge (the
“ALJ”) denied benefits to Brink on November 23,
2015. (Id. at 98-108). The Appeals Council denied
Brink's request for review, rendering the ALJ's
decision final. (Id. at 1); see 20 C.F.R.
§ 404.981. Brink initiated the instant lawsuit on March
17, 2017. (Compl.).
Court reviewed the entire Administrative Record, but
summarizes only the evidence necessary to determine the
issues before the Court.
Brink's Background and Testimony
AOD, Brink was forty-nine years old, making him a younger
individual, though he has since become a person approaching
advanced age. 20 C.F.R. § 404.1563(c), (d); see
(Admin. R. at 263).
completed high school and has a two-year degree in machine
tool technology. (Admin. R. at 117-18). He has work
experience as a machinist, auto repair mechanic, press brake
operator, car wash owner, and delivery driver. (Id.
stopped working in 2013 due to pain and numbness in his right
leg. (Id. at 135). Although his neck and right
shoulder started “acting up” in 2011 or 2012, by
2013, his neck was immobilized four to five times per year.
See (id.). He had surgery on his low back
in April 2013 and returned to work doing “light duty,
” such as answering the phone and talking to customers.
(Id. at 136). He was able to lie down on a couch and
vary his hours as needed. (Id.). Ultimately, work
was “extremely painful” and he quit.
(Id.). Although surgery helped his lower back
moderately, it did not alleviate the pain in his right leg.
(Id. at 137).
his second surgery in September 2014. (Id.). He
experienced some relief in his right leg pain, but it did not
resolve completely. (Id. at 138). Since his second
surgery, Brink has attempted to relieve pain by attending a
pain clinic and taking oxycodone and Flexeril. (Id. at
138). At the time of the hearing before the ALJ, his
“baseline pain” in his lower back and right leg
were a four to five out of ten. (Id.). Triggers for
his pain include sitting for more than an hour, standing for
more than an hour, and walking more than 200 yards.
(Id. at 138-39).
had fusion surgery on his neck in 1999, and another surgery
in September 2015 to revise it. (Id. at 139). His
symptoms include a sore neck, numbness on the right side of
his face, and down his right arm. (Id.). He
testified that the recent surgery appears to be helping,
although he is having more trouble with his fingers.
(Id. at 139-40).
testified that pain wakes him up and that he considers four
hours of sleep a good night. (Id. at 141). To
compensate, he has to lay down every hour or two, for a total
of about six hours per day. (Id. at 141-42).
testified that the most he can lift off the floor is a spoon,
and that he can probably pick up, lift, and carry twenty
pounds, as long as he does not need to lift it from the
floor. See (id. at 142-43). He cannot,
however, lift and carry twenty pounds a few times per hour
without lying down in between. (Id. at 143). At
home, he does “a fair amount of the cooking, ”
some laundry, light housework, and some grocery shopping.
(Id.). Even when he is cooking, he will sometimes
lie down for five minutes. (Id. at 143-44). Pain
prevents him from engaging in recreational activities.
(Id. at 144).
testified that he would not be able to stand and walk six
hours a day, five days a week because of his lower back pain
and headache. (Id. at 144-45). He gets three to four
severe headaches a week that cause him to throw up.
(Id. at 145).
2001, Brink had his first cervical spine surgery, apparently
to correct problems related to a bone spur. (Id. at
February 2012, Brink saw Russell Gelfman, MD (“Dr.
Gelfman”), for numbness in the right side of his neck
and shoulder. (Id. at 381). Dr. Gelfman ordered an
MRI which revealed neural foraminal stenosis in Brink's
cervical spine, as well as a disk bulge. (Id. at
380, 382). Dr. Gelfman treated Brink with mechanical cervical
traction, which worked well for a period of time.
(Id. at 371, 378). In December 2012, however, Brink
returned to Dr. Gelfman, complaining that his neck pain had
returned after he stopped using the cervical traction unit.
(Id. at 371). Additionally, Brink told Dr. Gelfman
that he had started suffering lower back pain, radiating down
to his groin, after kicking a football two months earlier.
(Id.). In April 2013, after reviewing a lumbar MRI,
Dr. Gelfman diagnosed Brink with right L3 radiculopathy, L4-5
neural foraminal narrowing, and T12-L1 disk
extrusion. (Id. at 370).
April 18, 2013, William E. Krauss, MD (“Dr.
Krauss”), operated on Brink's lower back to correct
nerve pinching. (Id. at 365-66). But at a July 2013
appointment with Dr. Gelfman, Brink reported that neither the
surgery nor subsequent epidural steroidal injections improved
his back and leg pain. (Id. at 404). Dr. Gelfman
ordered MRIs of Brink's right hip and pelvis, which
revealed a tear in his right labrum and trochanteric
bursitis. (Id. at 400, 402). Brink reported
difficulty working and Dr. Gelfman noted that he was
“unable to continue in a highly physical occupation
such as a mechanic.” (Id. at 400).
2014, after cervical and lumbar spine x-rays and a lumbar
spine MRI, Cory Duffek, MD (“Dr. Duffek”),
diagnosed Brink with cervical spine stenosis and a disc
protrusion in his L3-L4 vertebrae. (Id. at 431-34).
Brink was referred to surgeon Jeffrey S. Henn, MD (“Dr.
Henn), who scheduled a decompression and fusion procedure on
Brink's L3 and L4 vertebrae to correct his lumbar spine
problems for September 15, 2014. (Id. at 437-38).
2014, between Brink's initial consultation with Dr. Henn
and the surgery itself, Joe McGilvrey
(“McGilvrey”), a physical therapist, filled out a
functional capacity evaluation report. (Id. at 446).
McGilvrey opined that Brink could perform light work, but
that he was ...