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Wierimaa v. Berryhill

United States District Court, D. Minnesota

August 3, 2018

Brian Wierimaa, Plaintiff,
Nancy Berryhill, Commissioner of Social Security, Defendant.

          Stephanie Balmer, for Plaintiff.

          Pamela Marentette, Assistant United States Attorney, for Defendant.



         Plaintiff 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 WITH PREJUDICE.


         This 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.[1] 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.


         A. Background

         Wierimaa 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 190.[2] Wierimaa's past relevant work includes employment as a janitor for a cleaning company. AR 182.

         B. Hearing Testimony

         Wierimaa 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. AR 43.

         Wierimaa 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.

         Wierimaa 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. AR 49.

         Wierimaa 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.

         Wierimaa 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.

         Vocational 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.

         C. Medical Evidence

         On 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 . . . .” Id.

         On May 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.

         From 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. ...

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