United States District Court, D. Minnesota
Joseph R. C., Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.
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 ...