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Brink v. Berryhill

United States District Court, D. Minnesota

March 9, 2018

James Brink, Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.

          ORDER

          STEVEN E. RAU, UNITED STATES MAGISTRATE JUDGE

         Pursuant 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.

         I. BACKGROUND

         A. Procedural History

         Brink 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.).

         B. Factual Background

         The Court reviewed the entire Administrative Record, but summarizes only the evidence necessary to determine the issues before the Court.

         1. Brink's Background and Testimony

         On his 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).

         Brink 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. at 119-21).

         He 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).

         He had 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.[1] (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).

         Brink 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).

         Brink 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).

         Brink 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).

         Brink 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).

         2. Medical Evidence

         Around 2001, Brink had his first cervical spine surgery, apparently to correct problems related to a bone spur. (Id. at 384).[2]

         In 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.[3] (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.[4] (Id. at 370).

         On 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).

         In May 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).

         In June 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 ...


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