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Tyler M. J. v. Berryhill

United States District Court, D. Minnesota

January 23, 2019

Tyler M. J., Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.

          Stephanie M. Balmer, Falsani, Balmer, Peterson & Balmer, (for Plaintiff); and

          Kizuwanda Curtis, Special Assistant United States Attorney, Assistant Regional Counsel, Social Security Administration, (for Defendant).

          REPORT & RECOMMENDATION

          TONY N. LEUNG UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         Plaintiff Tyler M. J. brings the present case, contesting Defendant Commissioner of Social Security's denial of his application for disability insurance benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. § 401 et seq. This matter is before the undersigned United States Magistrate Judge on cross motions for summary judgment, Plaintiff's Motion for Summary Judgment (ECF No. 11) and the Commissioner's Motion for Summary Judgment (ECF No. 13). These motions have been referred to the undersigned for a report and recommendation to the district court, the Honorable John R. Tunheim, Chief District Judge for the United States District Court for the District of Minnesota, under 28 U.S.C. § 636 and D. Minn. LR 72.1.

         Based upon the record, memoranda, and the proceedings herein, IT IS HEREBY RECOMMENDED that Plaintiff's Motion for Summary Judgment (ECF No. 11) be DENIED and the Commissioner's Motion for Summary Judgment (ECF No. 13) be GRANTED.

         II. PROCEDURAL HISTORY

         Plaintiff applied for DIB in August 2014, asserting that he has been disabled since September 2012 due to the following conditions: “neck, back, arms/hands, headaches, bipolar, depression, [and] personality disorder.” (Tr. 15, 82, 96, 97, 246, 260; see also Tr. 260.) Plaintiff's application for DIB was denied initially and again upon reconsideration. (Tr. 15, 94, 96, 111, 113; see Tr. 115-25.) Plaintiff appealed the reconsideration of his DIB determination by requesting a hearing before an administrative law judge (“ALJ”). (Tr. 15, 129-30; see Tr. 131-54.)

         The ALJ held a hearing on March 7, 2017. (Tr. 15, 43, 45; see Tr. 155-85.) After receiving an unfavorable decision from the ALJ, Plaintiff requested review from the Appeals Council, which denied his request for review. (Tr. 1-5, 12-39, 187-89.) Plaintiff then filed the instant action, challenging the ALJ's decision. (Compl., ECF No. 1.) The parties have filed cross motions for summary judgment. (ECF Nos. 11, 13.) This matter is fully briefed and ready for a determination on the papers.

         III. ANALYSIS

         A. Legal Standard

         This Court reviews whether the ALJ's decision is supported by substantial evidence in the record as a whole. Boettcher v. Astrue, 652 F.3d 860, 863 (8th Cir. 2011). “Substantial evidence means less than a preponderance but enough that a reasonable person would find it adequate to support the decision.” Id. This standard requires the Court to “consider both evidence that detracts from the [ALJ's] decision and evidence that supports it.” Id. The ALJ's decision “will not [be] reverse[d] simply because some evidence supports a conclusion other than that reached by the ALJ.” Id.; accord Perks v. Astrue, 687 F.3d 1086, 1091 (8th Cir. 2012). “The court must affirm the [ALJ's] decision if it is supported by substantial evidence on the record as a whole.” Chaney v. Colvin, 812 F.3d 672, 676 (8th Cir. 2016) (quotation omitted). Thus, “[i]f, after reviewing the record, the court finds it is possible to draw two inconsistent positions from the evidence and one of those positions represents the ALJ's findings, the court must affirm the ALJ's decision.” Perks, 687 F.3d at 1091 (quotation omitted); accord Chaney, 812 F.3d at 676.

         Disability benefits are available to individuals who are determined to be under a disability. 42 U.S.C. § 423(a)(1); 20 C.F.R. § 404.315. An individual is considered to be disabled if he is unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); see 20 C.F.R. § 404.1505(a). This standard is met when a severe physical or mental impairment, or impairments, renders the individual unable to do his previous work or “any other kind of substantial gainful work which exists in the national economy” when taking into account his age, education, and work experience. 42 U.S.C. § 423(d)(2)(A); see 20 C.F.R. § 404.1505(a).

         Disability is determined according to a five-step, sequential evaluation process. 20 C.F.R. § 404.1520(a)(4).

To determine disability, the ALJ follows the familiar five-step process, considering whether: (1) the claimant was employed; (2) []he was severely impaired; (3) h[is] impairment was, or was comparable to, a listed impairment; (4) []he could perform past relevant work; and if not, (5) whether []he could perform any other kind of work.

Halverson v. Astrue, 600 F.3d 922, 929 (8th Cir. 2010). In general, the burden of proving the existence of disability lies with the claimant. 20 C.F.R. § 404.1512(a).

         Plaintiff's arguments are directed at the ALJ's assessment of his residual functional capacity at step four. See Perks, 687 F.3d at 1092 (residual-functional-capacity determination occurs at step four). Plaintiff's “residual functional capacity is the most [he] can still do despite [his] limitations.” 20 C.F.R. § 404.1545(a)(1); see McCoy v. Astrue, 648 F.3d 605, 614 (8th Cir. 2011) (“A claimant's [residual functional capacity] represents the most he can do despite the combined effects of all of his credible limitations and must be based on all credible evidence.”). “Because a claimant's [residual functional capacity] is a medical question, an ALJ's assessment of it must be supported by some medical evidence of the claimant's ability to function in the workplace.” Perks, 687 F.3d at 1092 (quotation omitted). At the same time, a residual-functional-capacity determination must be “based on all of the relevant evidence, including the medical records, observations of treating physicians and others, and an individual's own description of [his] limitations.” Myers v. Colvin, 721 F.3d 521, 527 (8th Cir. 2013) (quotation omitted). And, “[e]ven though the [residual-functional-capacity] assessment draws from medical sources for support, it is ultimately an administrative determination reserved to the Commissioner.” Perks, 687 F.3d at 1092 (quotation omitted); see 20 C.F.R. § 404.1546(c). “[T]he burden of persuasion to prove disability and demonstrate [residual functional capacity] remains on the claimant.” Vossen v. Astrue, 612 F.3d 1011, 1016 (8th Cir. 2010); accord Perks, 687 F.3d at 1092.

         Plaintiff asserts that the ALJ did not properly evaluate his mental impairments and the ALJ's determination that he was capable of performing light work with frequent bilateral overhead reaching is not supported by substantial evidence. The Court considers each argument in turn along with a discussion of the relevant medical evidence.

         B. Mental Impairments

         1. Medical Evidence

         Plaintiff has a history of anxiety and bipolar disorders. (See, e.g., Tr. 364, 395, 397, 399, 403, 407, 417-18, 558, 562, 768, 783, 820-23, 1326-27, 1556, 1564.) Plaintiff also has a history of depression. (See, e.g., Tr. 558, 562, 730, 768, 783, 1326-27, 1556, 1562.)

         Between 2011 and 2013, Plaintiff regularly saw the following treatment providers in connection with his bipolar and anxiety disorders: Therese M. Sundberg, RN, CNP, for psychotherapy and medication management; Michael M. Messer, MD, for medication management; and Paul Larkin, ACSW, LICSW, for psychotherapy. (See, e.g., Tr. 721-23, 741-46, 751-54, 759-67, 772-780, 785-823.) Plaintiff was most frequently affected by his chronic pain. See infra Section III.C.1. (See, e.g., Tr. 806, 808, 810, 821.) Plaintiff also expressed feelings of “hopelessness and helplessness, ” (Tr. 765; see also Tr. 730), and had difficulties coping, (see, e.g., Tr. 743, 792, 778, 801, 804-05, 806, 822). Additionally, Plaintiff's mental health was often complicated by financial and employment stressors. (See, e.g., Tr. 730, 748, 755, 757, 775, 797, 799, 804, 818.) Plaintiff was treated with several different medications, including lamotrigine[1], trazodone[2], Wellbutrin[3], quetiapine[4], sertraline[5], and hydroxyzine[6]. (See, e.g., Tr. 743, 746, 777, 819, 822.) Plaintiff's therapy sessions were largely focused on stress management, coping strategies, and pain management. (See, e.g., Tr. 780, 792-97, 804-05.)

         Towards the end of 2012, Plaintiff began participating in an intensive outpatient partial program for adults, which he reported was “beneficial” and taught him “some ways to cope.” (Tr. 774; see Tr. 768-71, 772, 776; see also Tr. 781-84.) Around the same time, Plaintiff's therapy sessions also focused on chemical-dependency issues, including use of heroin and “some self[-]medicating with [V]alium[7] and/or prescribed codeine and Lortab[8].” (Tr. 774; see, e.g., Tr. 759-60, 772-73.) It appears that Plaintiff returned for additional treatment through the intensive outpatient partial program on occasion in 2013 as well. (See, e.g., Tr. 712-14, 730-34, 747-50, 755-58.)

         Plaintiff saw Larkin most frequently, roughly once per week July 2012 through February 2013, until he had a disagreement with Larkin over the focus on his “substance abuse issues.” (See, e.g., Tr. 759-60, 772-75, 779-80, 785-93, 802-07; see also Tr. 756.) During this time, Larkin noted that Plaintiff's mood was generally even to “slightly deflated”; he was overall less anxious; and his speech was less pressured. (See, e.g., Tr. 775, 780, 786, 788, 792, 794, 796, 803, 805.) Sundberg saw Plaintiff approximately once per year and noted that Plaintiff's mood was generally “euthymic, ” and his concentration and attention were within normal limits. (See, e.g., Tr. 762, 766, 800, 822.)

         In June 2013, Plaintiff was admitted overnight “for concerns of suicidal ideation” after presenting to the emergency room with reports of “increased hopelessness with worsening anxiety and sleep disturbance.” (Tr. 391; accord Tr. 397, 399, 400, 402; see also Tr. 539-41, 741, 744, 1114.) Plaintiff reported “significant financial problems lately[]as well as some relationship discord with his parents, who[m] he continues to live with.” (Tr. 392; accord Tr. 397, 402, 403-04.) “After an extensive initial interview, it was determined that [Plaintiff] was abusing his diazepam[9], which results in him going without the medication and experiencing withdrawal.” (Tr. 392; see Tr. 402, 403-04.) Plaintiff was also confronted about his marijuana use, which he admitted to “smok[ing] on at least a daily basis.” (Tr. 392; accord Tr. 402.)

         Plaintiff's mood was noted to be “[d]epressed, irritable and anxious.” (Tr. 392; see Tr. 404.) Plaintiff's judgment was “impaired by substance abuse”; his abilities to reason and problem solve were “poor” and his insight into his “condition and situation [wa]s fair.” (Tr. 392; accord Tr. 404.) Plaintiff was diagnosed with benzodiazepine abuse and withdrawal and bipolar disorder. (Tr. 393, 395, 399; see Tr. 404.) Plaintiff was discharged the following day with plans to follow up with his primary treatment providers for pain management and psychiatric care. (Tr. 393.)

         During a diagnostic assessment in early October 2013, Plaintiff was noted to have “traits of Cluster B personality disorders, ” but diagnosis was deferred. (Tr. 732, 733.) Plaintiff was noted to be “experiencing an acute episode of depression that meets criteria for partial hospitalization, ” and was placed on a waiting list. (Tr. 733.)

         Plaintiff presented to the emergency room again in October 2013 with suicidal thoughts which he attributed to “inadequate pain control.” (Tr. 406; accord Tr. 414; see Tr. 933-38, 1100-06.) Plaintiff requested tramadol[10] but was refused, at which time he became “verbally abusive.” (Tr. 407; see Tr. 412, 728.) This time, Plaintiff was admitted for three days. (Tr. 406.) Plaintiff reported that he was no longer taking opiates or diazepam. (Tr. 406-07.) Plaintiff had been “struggling to obtain insurance and was unable to afford his Lyrica[[11] prescription], ” having not had it “for two weeks.” (Tr. 407; accord Tr. 414, 417.) Plaintiff reported “experiencing a depressive episode up until about a week ago and has been struggling with insomnia[]as well as increased agitation and racing thoughts.” (Tr. 407; accord Tr. 414.) It was also noted that Plaintiff was scheduled for psychological testing with Sundberg and a partial hospitalization program to address mood instability. (Tr. 407, 414.)

         During his stay, Plaintiff “openly admitted . . . that he was not suicidal, but that he becomes tired of his chronic pain and this is very frustrating for him, and that he came to the hospital to get better pain control.” (Tr. 412; see also Tr. 417, 1641.) Plaintiff was also “involved in a low speed fender bender” a couple of days earlier, which increased his neck pain. (Tr. 417; see Tr. 526-27.) While he was hospitalized, Plaintiff was given an increased dose of Lyrica “with the intention to help him manage his anxiety with the potential that may improve some of his radiating pain from his neck into his left arm.” (Tr. 407; see Tr. 412.)

         Plaintiff's mood was again “[d]epressed, irritable and anxious.” (Tr. 407; accord Tr. 415.) His insight into his condition and situation was “limited” and his abilities to reason and problem solve were “fair.” (Tr. 407; accord Tr. 410, 415.) While Plaintiff's affect was “[p]rimarily appropriate and variable, ” he also displayed “some inappropriate laughing when discussing the stress of the situation.” (Tr. 407.) It was recommended that Plaintiff enroll in and complete a pain management program once he obtained insurance and follow up with psychological testing and the partial hospitalization program. (Tr. 408, 414; see Tr. 410, 412.)

         Plaintiff participated in the adult partial hospitalization program from October 21 through November 8, 2013. (Tr. 701-07.) Plaintiff underwent psychological testing and was diagnosed with depressive, anxiety, and personality disorders. (Tr. 700, 703, 705.) Sundberg also saw Plaintiff in connection with the program. (Tr. 712-714.) Sundberg encouraged Plaintiff to increase his antidepressant medication to address his “low mood and anxiety, ” but Plaintiff did “not wish to increase his dose.” (Tr. 714; see also Tr. 704.)

         Plaintiff next saw Sundberg in mid-February 2014. (Tr. 691.) Plaintiff reported that he was “doing well, ” and Sundberg noted that he had “made some remarkable changes since last seen, ” including working two hours a day as a custodian and taking six credits at a local college. (Tr. 691-92.) Plaintiff did not feel that his Zoloft[12] prescription was effective, and Sundberg prescribed a trial of Cymbalta.[13] (Tr. 692-93.) At his next appointment in September, Plaintiff reported that the duloxetine[14] was “working” and he “would like an increase.” (Tr. 631.) Plaintiff also wanted to decrease his bupropion[15]. (Tr. 631.) Sundberg noted both of these requests were “reasonable” and adjusted Plaintiff's prescriptions. (Tr. 631, 633.)

         Plaintiff began therapy with Elisabeth A. Molstad, MSW, LICSW, towards the end of May 2014. (Tr. 666-67.) Plaintiff saw Molstad approximately once per month between May and October. (Tr. 611, 639, 640, 642, 651, 666.) Plaintiff continued to experience financial stress, difficulties coping, relationship challenges, and chemical-dependency issues. (See, e.g., Tr. 611, 639-40, 642-43, 666, 651.)

         Between mid-May 2015 and the end of the year, Plaintiff saw Todd A. Heggestad, LP, for psychotherapy nine times in connection with his “adjustment reaction with anxiety and depression.” (See, e.g., Tr. 1387, 1404, 1419, 1432, 1477, 1488, 1490, 1493, 1496; see also Tr. 1380-81, 1390-91.) Plaintiff's visits focused on the same recurring themes with respect to health and pain management, relationship issues, and struggles with chemical dependency. (See, e.g., 1380, 1387, 1390, 1419, 1432, 1466, 1477, 1488, 1490, 1492, 1496.)

         At the end of 2015, Plaintiff was hospitalized after attempting suicide following a confrontation with his parents over his medication use and “want[ing] him to move out.” (Tr. 1367, 1694-1702; see Tr. 1368, 1373.)

         Also towards the end of 2015, Plaintiff began to meet with Babuji R. Gandra, MBBS, for medication management and psychological treatment including electroconvulsive therapy. (See, e.g., Tr. 1382-86, 1412-15; see Tr. 1292.) Plaintiff met with Gandra a handful of times. (See, e.g., Tr. 1368, 1382-86, 1412-15.)

         Plaintiff continued to regularly meet with Dr. Heggestad throughout 2016 with their sessions primarily focused on Plaintiff's chemical dependency and treatment. (See, e.g., 1249, 1253-55, 1257-58, 1269, 1272-76, 1278-79, 1286, 1309, 1329, 1327, 1325, 1330, 1333, 1340, 1343-44, 1353, 1361, 1364, 1367, 1623, 1632, 1635; see also Tr. 1289-90, 1324-28.) During this time, Plaintiff was discharged from one treatment program, but entered and completed another residential treatment program. (See, e.g., Tr. 1274-80, 1286.)

         Plaintiff met with Sundberg twice in 2016 to review his medications, once in July and once in December. (Tr. 1246-48, 1292-95.) In December, Plaintiff reported that he was “doing better.” (Tr. 1246.) Plaintiff was currently living at a boarding facility and hoped to move into a group home. (Tr. 1246.)

         Plaintiff continued meeting with Dr. Heggestad in early 2017. (See Tr. 1603, 1615, 1618.) These sessions tended to focus on feelings of tiredness, a desire to be more involved at the boarding facility, and adjusting to living at the facility. (Tr. 1603, 1618; see Tr. 1616, 1632.) In mid-January, Dr. Heggestad described Plaintiff as “stable.” (Tr. 1616.)

         In February, Plaintiff had a medication management appointment with Sundberg. (Tr. 1606-08.) Plaintiff reported that he “wants some independence, but not full independence, in that he feels that he does need assistance in transport [sic] and activities of daily living.” (Tr. 1607.) Sundberg noted that Plaintiff's “[m]ood and affect are generally euthymic”; “[s]peech is of normal rate and rhythm”; “[t]hought processes are logical and goal directed without evidence of disorder”; “[i]mmediate recall, recent memory and remote memory are intact”; “[i]nsight and judgment are intact”; and “[f]und of knowledge is average.” (Tr. 1607-08.)

         2. Opinion Evidence

         a. Dr. Trulsen

         In April 2015, Marlin Trulsen, PhD, LP, completed a consultative examination (Tr. 1225-30.) Plaintiff's diagnoses included pervasive developmental disorder, adjustment disorder with mixed anxiety and depressed mood, anxiety disorder, and ...


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