Joseph R. C. v. Berryhill

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

          James Sides, 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 Joseph R. C. 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. 12) and the Commissioner's Motion for Summary Judgment (ECF No. 15). 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. 12) be DENIED and the Commissioner's Motion for Summary Judgment (ECF No. 15) be GRANTED.

         II. PROCEDURAL HISTORY

         Plaintiff applied for DIB in November 2014, asserting that he has been disabled since July 5, 2011 due to depression, anxiety, chronic fatigue, myasthenia gravis, and carpal tunnel syndrome. (Tr. 11, 233, 245; see Tr. 319-20, 346, 353, 378, 390.) Plaintiff's application for DIB was denied initially and again upon reconsideration. (Tr. 11, 244-45, 247, 258, 260; see Tr. 262-72.) Plaintiff appealed the reconsideration of his DIB determination by requesting a hearing before an administrative law judge (“ALJ”). (Tr. 11, 273-74; see Tr. 275-95.)

         The ALJ held a hearing on February 14, 2017. (Tr. 11, 189, 191; see Tr. 299-314.) After receiving an unfavorable decision from the ALJ, Plaintiff requested review from the Appeals Council, which denied his request for review. (Tr. 1-33, 315-18.) As part of his request for review, Plaintiff submitted additional evidence, consisting of medical records from 2010; his own diary/journal entries from December 2014 through March 2017; and a medical source statement, dated April 1, 2017. (Tr. 2; see Tr. 76-102, 104-88.) With respect to the 2010 medical records, the medical source statement and Plaintiff's diary/journal entries through December 31, 2016, the Appeals Council determined that the evidence did “not show a reasonable probability that it would change the outcome of the [ALJ's] decision.” (Tr. 2.) Accordingly, the Appeals Council “did not consider and exhibit this evidence.” (Tr. 2.) As for Plaintiff's diary/journal entries from January through March 2017, the Appeals Council stated “[t]he additional evidence d[id] not relate to the period at issue.” (Tr. 2.) Because Plaintiff's case was decided “through December 31, 2016, ” this evidence did “not affect the decision about whether [he was] disabled beginning on or before December 31, 2016.” (Tr. 2.)

         Plaintiff subsequently filed the instant action, challenging the ALJ's decision. (Compl., ECF No. 1.) The parties have filed cross motions for summary judgment. (ECF Nos. 12, 15.) 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).

         B. Relevant Time Period

         In order to be entitled to DIB, Plaintiff must establish that he was disabled before his insurance expired. Moore v. Astrue, 572 F.3d 520, 522 (8th Cir. 2009) (citing Cox v. Barnhart, 471 F.3d 902, 907 (8th Cir. 2006)). Plaintiff's date last insured was December 31, 2016. (Tr. 11, 233, 245, 247, 260, 353, 378, 390; Comm'r's Mem. in Supp. at 1, 3, ECF No. 16.) Thus, Plaintiff must prove that he was disabled before December 31, 2016. Accordingly, the period presently at issue is July 5, 2011, the alleged onset date, through December 31, 2016, the date last insured. Nevertheless, “[e]vidence from outside the insured period can be used in helping to elucidate a medical condition during the time for which benefits might be rewarded.” Cox, 471 F.3d at 907 (quotation omitted).

         C. Issues Raised

         Plaintiff challenges the ALJ's assessment of his sleep disorders and his carpal tunnel syndrome. Plaintiff argues that the ALJ erred by concluding that his sleep disorders did not meet or equal a listed impairment and failed to account for his fatigue and inability to stay on task when determining his residual functional capacity. Plaintiff additionally argues that the ALJ's residual-functional-capacity determination only included handling and fingering limitations for his right hand due to carpal tunnel syndrome and did not account for carpal tunnel syndrome in his left hand as well. Further, Plaintiff argues that the ALJ's residual-functional-capacity determination did not account for limitations he has in the use of both of his hands. Lastly, Plaintiff argues that the Appeals Council erred by “refusing to consider” the additional evidence submitted with his request for review.

         1. Sleep Disorders Meet or Equal a Listed Impairment

         Among other severe impairments, the ALJ found and concluded that Plaintiff had the severe impairments of narcolepsy and “sleep apnea with hypersomnolence and fatigue, ” and these impairments when considered individually or in combination with other impairments did not meet or equal a listed impairment. (Tr. 13-14.) In finding that Plaintiff's impairments did not meet or equal a listed impairment, the ALJ noted that “[c]ognitive deficits related to the obstructive sleep apnea, narcolepsy, and chronic fatigue have not been observed in physical examinations.” (Tr. 14.)

         a. Medical Records

         Plaintiff has a history of obstructive sleep apnea and uses a CPAP machine. (Tr. 426, 430, 748, 752, 781-82, 785-87, 789, 808-09; see Tr. 801, 806, 811, 847, 849-50.) Plaintiff has participated in “several previous sleep studies, ” which showed severe sleep apnea. (Tr. 426; see Tr. 748, 752, 841-45.) In 2010, Plaintiff reported being “worried that he may lose his job as he has difficulty focusing at work and will leave work in order to take a nap and will also nap after work.” (Tr. 785; see Tr. 786.)

         In November 2011, Plaintiff was seen for continued complaints of “excessive daytime sleepiness.” (Tr. 426.) Plaintiff reported that “[s]leep [wa]s not refreshing for him on most days, ” and he took “naps daily for up to 2 hours a day.” (Tr. 426.) Plaintiff reported that he was “afraid to drive for fear of falling asleep at the wheel.” (Tr. 426.) Plaintiff also reported that he had “quit using [c]affeine with no change in his daytime sleepiness.” (Tr. 426.) Adderall^[1] and Ritalin^[2] did not help either. (Tr. 429, 430.)

         Plaintiff reported “getting anywhere from 6-12 hours” of sleep. (Tr. 426.) Plaintiff went to bed between 10:00 and 11:00 p.m., falling asleep within 20 minutes, and then got up at 9:00 a.m. (Tr. 426.) Plaintiff reported getting up one or more times during the night. (Tr. 426.)

         Upon examination, Plaintiff was “[a]wake, alert and oriented.” (Tr. 428.) Plaintiff's treatment provider discussed Plaintiff's depression as a source of his sleepiness in light of his history. (Tr. 426, 429; see Tr. 444, 781-84, 787, 789-93, 809, 830; see also Tr. 798, 806.) Plaintiff denied being depressed. (Tr. 426, 429.) It was recommended that Plaintiff be seen in internal medicine for further evaluation and the CPAP pressure be “rechecked.” (Tr. 429.)

         Plaintiff was seen by Donald L. Deye, M.D., in early December for an evaluation. (Tr. 430, 444.) Plaintiff reported increasing fatigue since he was a teenager and that “[h]e has been tired for as long as he can remember.” (Tr. 430, 444; see Tr. 445.) Plaintiff reported that he has tried “many different medications without success” for depression. (Tr. 444.) Plaintiff reported that, despite sleeping between eight and ten hours per day, he continues to have fatigue and difficulty concentrating. (Tr. 430.) Plaintiff also reported taking “naps twice daily” and generally being “able to sleep well at night after that.” (Tr. 444.) Plaintiff additionally reported drinking between six and eight caffeinated sodas per day. (Tr. 435.) Dr. Deye directed Plaintiff to consult with the neurology clinic. (Tr. 432; see Tr. 445.)

         Plaintiff met with neurology approximately ten days later for complaints of excessive fatigue. (Tr. 445.) Plaintiff described his fatigue as: “low energy, ‘no ambition', ‘I can't hardly stand', and ‘I can't function.'” (Tr. 445.) Plaintiff reported that he quit working “in July 2011 because of excessive fatigue.” (Tr. 445.) Plaintiff again reported that he had tried medication without success. (Tr. 445.) Plaintiff also reported that “[h]e has been evaluated by psychiatrists and tried . . . different anti-depressants . . .” without success. (Tr. 445.) Plaintiff stated that he quit taking his antidepressant medications approximately eight months ago because they did not work. (Tr. 445.)

         Plaintiff described having a “reversed” sleep schedule. (Tr. 445.) Plaintiff went to bed at 10:00 p.m. and slept until midnight. (Tr. 445.) Plaintiff watched movies most of the night. (Tr. 445.) Plaintiff then slept again from 5:00 a.m. to noon. (Tr. 445.)

         Plaintiff was alert and oriented, “without evidence of confusion, aphasia^[3], or dysarthria^[4].” (Tr. 447.) Plaintiff was assessed as having chronic fatigue, poor sleep hygiene, and obstructive sleep apnea among other things. (Tr. 448.) Plaintiff's symptoms were noted to be “most consistent with chronic fatigue and not excessive daytime hypersomnolence^[5].” It was noted that Plaintiff had “symptoms of depression” but denied being depressed. (Tr. 448.) There was no “neurological cause for his excessive fatigue, ” and he did “not have symptoms of narcolepsy.” (Tr. 449.) Plaintiff “became angry when . . . [it was] suggested that his excessive fatigue may be related to depression, anxiety, poor sleep hygiene, lack of exercise, and tobacco smoking and he stormed out of the office.” (Tr. 449.)

         Plaintiff followed up with Dr. Deye in early January 2012 with continued complaints of fatigue without improvement. (Tr. 450, 452.) Plaintiff reported that he resumed taking clonazepam^[6] at bedtime for panic attacks approximately one month ago. (Tr. 452.) Plaintiff would “‘take it for 4 or 5 days, [and] be sleeping normally again.'” (Tr. 452.) Then he would stop taking “‘it for a week or two.'” (Tr. 452.) Plaintiff reported being upset that he was “‘so tired'” and not able to do things. (Tr. 452.) Plaintiff was not interested in a psychiatric consultation, stating “‘[i]t would be [his] 15th opinion.” (Tr. 452.)

         Dr. Deye instructed Plaintiff to reduce his clonazepam dose “to just one at bedtime as needed for insomnia” as “[f]atigue is caused or made worse by clonazepam.” (Tr. 453.) Dr. Deye also encouraged Plaintiff to “[t]ry to gradually wean off of this to improve fatigue.” (Tr. 453.) Dr. Deye prescribed a trial of nortriptyline^[7] and referred Plaintiff for a psychiatric consultation. (Tr. 453.)

         Plaintiff consulted with Timothy M. Magee, M.D., in psychiatry at the end of February. (Tr. 467.) Plaintiff discussed his history of treatment for chronic fatigue and depression without success. (Tr. 467.) Plaintiff reported that “[h]e has been off on disability for the last eight months because he is ‘too tired to work.'” (Tr. 467.)

         Dr. Magee noted that Plaintiff was “[v]ery intelligent and seems to want help, ” but “[t]he chronicity of his disability places this in some doubt.” (Tr. 467.) During the mental status examination, Plaintiff demonstrated “[t]angential distractibility” and had no memory impairment. (Tr. 470.) Dr. Magee noted that “[t]he diagnosis isn't clear.” (Tr. 470.) Dr. Magee prescribed a trial of Adderall to see if Plaintiff's energy, attention, and concentration improved, and directed Plaintiff to return in approximately one month. (Tr. 471.)

         Plaintiff saw Dr. Magee two more times, once in May and once in June. (Tr. 474-477.) During each of these visits, Plaintiff demonstrated normal attention and concentration, and his memory was not impaired. (Tr. 475, 477.) In May, Plaintiff reported that the Adderall helped briefly and then stopped working. (Tr. 474.) Dr. Magee switched Plaintiff to Ritalin. (Tr. 475.) When Plaintiff returned in June, he reported that Ritalin worked for three weeks and then stopped. (Tr. 476; see Tr. 839.) Dr. Magee increased Plaintiff's Ritalin dosage. (Tr. 477.)

         Plaintiff saw Dr. Deye towards the end of July. (Tr. 481.) Plaintiff reported feeling tired and not being able to concentrate. (Tr. 481-82; see Tr. 837.) Plaintiff also reported “‘need[ing] a nap every couple hours.'” (Tr. 482.) Plaintiff mentioned a recent vacation he took with his wife to South Dakota and stated he “could hardly do it” despite the fact that “[w]e go there all the time.” (Tr. 481.) Plaintiff also mentioned his Adderall and Ritalin trials with Dr. Magee, stating “I've seen Dr. Ma[g]ee. He says there's nothing he can do for me.” (Tr. 481.) Plaintiff reported that he was no longer taking Ritalin. (Tr. 481.) Plaintiff was also trying to quit smoking. (Tr. 481.)

         When Plaintiff next saw Dr. Deye approximately two months later, he was “having a panic attack as [Dr. Deye] enter[ed] the room.” (Tr. 491.) Plaintiff reported, “‘I've been really bad. I'm a mess. I don't like living like this. I don't have a good quality of life.'” (Tr. 492.) Plaintiff also reported that he had quit smoking and lost 45 pounds using his treadmill every day. (Tr. 491.) In addition, Plaintiff reported that he had recently begun seeing F. S. Abuzzahab, Sr., PhD, MD, a psychopharmacologist. (Tr. 491; see Tr. 607-19.) See infra Section III.C.1.b.

         Plaintiff followed up with Dr. Deye again in early December. (Tr. 502.) Plaintiff continued to have complaints of fatigue and was “sleeping long hours.” (Tr. 502.)

         Plaintiff's next appointment with Dr. Deye was in mid-March 2013. (Tr. 513.) He was still feeling “[t]ired all the time.” (Tr. 513.)

         During an appointment with Dr. Deye at the end of August for an unrelated concern, Plaintiff reported that he had been feeling “‘really, really tired[, s]leepy tired, not exhausted tired[, ]” since an endocrinologist he met with a month prior made some adjustments to his thyroid medication. (Tr. 535; see Tr. 531-34.)

         In early September 2014, Plaintiff had a consultation at the Noran Neurological Clinic for complaints of fatigue and weakness. (Tr. 709.) Plaintiff reported having “constant fatigue for many years and . . . having this problem since high school.” (Tr. 709.) Plaintiff reported that “he gets tired easily and . . . feels like he never slept.” (Tr. 709.) Plaintiff also reported “that he ‘cannot get going' until noon and then the evening or the night time are the best time when he is most active.” (Tr. 709.) Plaintiff “takes a nap at night and sometimes is awake all night.” (Tr. 709.) Plaintiff also “takes multiple naps during the day.” (Tr. 709.)

         Among other things, Plaintiff reported “difficulty concentrating, memory loss, arm weakness, . . . numbness and tingling, . . . daytime sleepiness, waking feeling unrefreshed, [and] difficulty falling asleep.” (Tr. 709.) Upon examination, Plaintiff's attention and concentration were “normal”; his memory was “good”; and he was able to “follow[] commands without difficulty.” (Tr. 710.) Plaintiff's chronic fatigue was thought to be “due to lack of sleep problems” rather than a neuromuscular problem. (Tr. 710.)

         A week later, Plaintiff had a neurology appointment at the Cambridge Medical Center to address complaints of fatigue. (Tr. 563.) Plaintiff reported “feel[ing] fatigued to the point that he can't carry out tasks.” (Tr. 563.) Plaintiff did “not have fatigable weakness on exam, ” and there was “[n]o evidence of primary neurological disease as [the] cause of [his] fatigue.” (Tr. 564.) Plaintiff's treatment provider noted that “we discussed the multiple causes of fatigue and it seems he has had them tested.” (Tr. 564.) It was also noted that Plaintiff had failed to respond to treatment for fatigue. (Tr. 564.)

         During an appointment with Dr. Deye in November for an unrelated condition, Plaintiff told Dr. Deye that he “spent a week and a half asleep after . . . [a medication] change.” (Tr. 688.) Plaintiff also reported that he was “working on a DC motor mount for a shaper.” (Tr. 688.)

         In January 2015, Plaintiff consulted with the Minneapolis Clinic of Neurology in connection with his continued fatigue. (Tr. 752.) Plaintiff reported taking three or four 90 minute naps every day. (Tr. 752, 748.) Plaintiff's attention and memory were normal. (Tr. 753.) Plaintiff met with a sleep specialist later that month. (Tr. 748; see Tr. 754.) Plaintiff was alert, and his memory was ...