United States District Court, D. Minnesota
Stephanie Balmer, for Plaintiff.
Marentette, Assistant United States Attorney, for Defendant.
FRANKLIN L. NOEL UNITED STATES MAGISTRATE JUDGE
Brian Wierimaa seeks judicial review of the final decision of
the Acting Commissioner (“Commissioner”) of the
Social Security Administration (“SSA”), who
denied his application for disability insurance benefits
under Titles II and XVI of the Social Security Act. This
Court has jurisdiction over the claim pursuant to 42 U.S.C.
§§ 405(g) and 1383(c)(3), 28 U.S.C. § 636(c),
and Rule 73 of the Federal Rules of Civil Procedure. The
parties have submitted cross motions for summary judgment.
See ECF Nos. 10 and 12. For the reasons set forth
below, the Commissioner's motion for summary judgment is
GRANTED, the Commissioner's decision is
AFFIRMED, and the case is DISMISSED
SSA litigation stems primarily from Wierimaa's alleged
psychological impairments, his recalcitrance to explore
whether he actually suffers from a bona fide psychological
disorder, and whether any such disorder impacts his ability
to secure and maintain competitive employment. On September
22, 2014, Wierimaa applied for disability insurance benefits
(“DIB”) and supplemental security income
(“SSI”) under Titles II and XVI of the Social
Security Act, alleging a disability onset date of December
31, 2013. Administrative Record [hereinafter
“AR”] 60, 143 ECF No. 9. Wierimaa's
application was denied initially on November 17, 2014, and
upon reconsideration on February 5, 2015. AR 69, 78.
Thereafter, Wierimaa filed a written request for a hearing
before Administrative Law Judge (“ALJ”) Roger
Thomas, which was held on April 21, 2016. AR 26-59. On May
13, 2016, the ALJ denied Wierimaa's application for DIB
and SSI. AR 7-25. On July 15, 2016, Wierimaa submitted
additional materials in support of his application for DIB
and SSI. AR 283-92. On June 26, 2017, the SSA
Appeals Council denied Wierimaa's request for review,
rendering the ALJ's decision final for purposes of
judicial review. AR 1-6; see 20 C.F.R. §
404.981. On August 25, 2017, Wierimaa commenced this action,
seeking an award of benefits, or alternatively, remand for
further proceedings pursuant to 42 U.S.C. §§ 405(g)
and 1383(c)(3). See ECF No. 1.
was nearly fifty-seven years old on his alleged disability
onset date. AR 60. In his application for DIB and SSI,
Wierimaa claims that the following medical conditions impair
his ability to secure and maintain competitive employment:
tendonitis in his feet and ankles, and vertigo. AR
Wierimaa's past relevant work includes employment as a
janitor for a cleaning company. AR 182.
testified on his own behalf at the April 21, 2016,
administrative hearing. AR 30-56. Wierimaa was represented by
an attorney at the hearing, Stephanie Balmer. AR 30. Wierimaa
testified that he has an eleventh grade education and does
not know how to properly use a computer. AR 32. He testified
that he is not married, does not have children, and has lived
alone in the same house since his parents died, ultimately
inheriting the house from them. AR 31. Wierimaa testified
that he has a driver's license and receives $194 a month
in food assistance. Id. He testified that he earns
income from a tenant who rents the bottom floor of his home.
testified that he was fired from his last job as a janitor
for not being fast enough, often needing assistance, and poor
general performance. AR 45. Wierimaa testified that he
briefly worked as a telemarketer after being fired from his
janitorial position. AR 38. He also testified that he is
currently looking for work as a janitor. Id.
stated that he experiences vertigo in the winter, which stops
him from exercising regularly. AR 34. He testified that he
was regularly walking and riding a stationary bicycle for
exercise and shoveling snow in the winter. Id.
Wierimaa stated that he can take care of himself and is
capable of bathing, dressing, and preparing meals. AR 35. He
testified that he is now only exercising about once a week.
testified that he often smells gas in his basement, which
causes him to wear a respirator. AR 36. He stated that he
uses a microwaved hot towel to apply shampoo to clean his eye
lashes because he believes he suffers from an eye disorder.
AR 41. He also stated that he packs several layers and
changes of clothes to accommodate weather changes when he
leaves his home, and because he sweats a lot. Id. He
testified that he often has trouble getting a proper amount
of sleep, AR 48, and that his eye routine and clothing
preparation take a long time. AR 50. Wierimma testified that
he rarely leaves his home, goes out or to the movies, or
publically socializes. Id.
testified that although he was instructed to obtain mental
health treatment and evaluation, he does not believe
treatment or further evaluation is necessary, and he believes
he is fine and doing well. AR 49. As to the respirator,
Wierimaa testified that he has to wear it even when going
outside because it improves his vertigo symptoms and helps
him avoid harmful auto and lawnmower exhaust. AR 52. He
stated that his eye-wash routine takes him a long time
because his house is often cold and he has to microwave his
towel several times. AR 50. He testified that if the towel is
to hot, he has to wear multiple sets of rubber gloves to
handle the towel. Id.
expert (“VE”) Kenneth Ogren, also testified at
the hearing. AR 54. The VE testified that Wierimaa could
perform his past work as a janitor, but would be limited to
working in that capacity on night or afternoon shifts. AR 56.
The VE opined that 6, 300 of those janitorial jobs exist in
Wisconsin and Minnesota. AR 57. The VE also opined that if a
company had more restrictive policies regarding an employee
that hypothetically brought several additional sets of
clothing to wear, the number of available janitorial jobs
would be reduced by a third. Id. The VE finally
opined that a person of Wierimaa's age and education
would only be permitted to nap during their lunch break, and
if additional naps or breaks were needed, they would be
precluded from work as a janitor. AR 58.
April 13, 2013, Wierimaa was treated by Mostafaa Farache,
M.D., for fatigue and dizziness. AR 370. Wierimaa reported a
sense of imbalance, feeling lightheaded, and spinning that
had been intermittent for several years. Id. Farache
noted that it was possible that Wierimaa's irregular
sleep patterns contributed to his dizziness symptoms. AR 372.
Farache also observed that Wierimaa had been suffering from
the same symptoms for a few years, but his neurological exam
was “essentially unremarkable.” Id.
Farache advised Wierimaa that he did not know for certain
what was causing his symptoms, and that Farache believed that
it would be advisable for Wierimaa to get an image test of
his brain to rule “out any slow growing tumors . . .
.” Id. Farache opined that if image testing
was negative, he believed that Wierimaa needed to be
evaluated “for any inner ear problems . . . .”
8, 2013, Wierimaa received a physical and mental work-up at
Essentia Health. AR 365-80. Betsy Schutte, Au.D., found that
Wierimaa's balance was normal and found no specific cause
or presence of vertigo, dizziness, tinnitus in the ear, or
fatigue. AR 380. David Alexander, M.D., performed image
testing of Wierimaa's brain, which found no evidence of
structural abnormality. AR 377. Julie Szendrey, a licensed
physical therapist, found that Wierimaa's gait was normal
and that he could ambulate quickly if needed. AR 365. She
also found that Wierimaa had no difficulty with smooth
pursuit, saccades, or gaze stabilization trials with no
change in his symptoms. Id. Szendrey also noted that
Wierimaa claimed that he could feel “something”
when he turned his head quickly, but he described his
symptoms as “not really dizziness.” Id.
Szendrey opined that she was not certain “what is
causing [Wierimaa's] symptoms, and his episode could not
be reproduced with movement . . . [and at that time] no
further physical therapy [was] recommend, as [Wierimaa]
appeare[d] to be functioning at a normal level for gait and
balance skills.” Id.
May 13, 2013, through October 14, 2013, Wierimaa was examined
at St. Luke's Hospital and was treated with Meclizine for
positional vertigo. AR 293-302. On June 17, 2013,
Wierimaa's treating physician, Craig Gilbertson, M.D.,
noted that some of Wierimaa's providers at St. Luke's
were concerned about his mental health because he had
previously had a negative evaluation and appeared antisocial
and compulsive. AR 296. Gilbertson noted that Wierimaa denied
suffering from anxiety or from any mental health disorder,
and that he felt persecuted by his providers. Id. ...