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Kimberly B. v. Berryhill

United States District Court, D. Minnesota

February 15, 2019

Kimberly B., Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.

          ORDER

          HILDY BOWBEER, UNITED STATES MAGISTRATE JUDGE [1]

         Pursuant to 42 U.S.C. § 405(g), Plaintiff Kimberly B. seeks judicial review of a final decision by the Acting Commissioner of Social Security denying her applications for disability insurance benefits (“DIB”) and supplemental security income (“SSI”). The case is before the Court on the parties' cross-motions for summary judgment [Doc. Nos. 16, 19]. For the reasons set forth below, the Court denies Plaintiff's motion for summary judgment and grants the Commissioner's motion for summary judgment.

         I. Procedural Background

         Plaintiff filed applications for DIB and SSI on September 11, 2012, alleging she was not able to work as of August 31, 2009, due to osteoarthritis, affective/mood disorders, and related impairments. (R. 188-89, 396-408.)[2] Her applications were denied initially and on reconsideration, and she requested a hearing before an administrative law judge (“ALJ”). The hearing was convened on May 14, 2014. (R. 107-32). The ALJ found Plaintiff not disabled in a written decision dated June 12, 2014. (R. 226-41.) Plaintiff requested review of the ALJ's decision, and the Appeals Council granted review and remanded the matter for a new hearing and decision. (R. 247-52.)

         A second hearing was held before the same ALJ on June 14, 2016. (R. 74-106.) During the hearing, Plaintiff amended her onset date to July 17, 2012. (R. 105.) The new date corresponded with a previously issued unfavorable decision on a prior application for DIB. (R. 12, 133-46.)

         In a decision dated August 8, 2016, the ALJ again found Plaintiff not disabled. (Tr. 8-35.) Pursuant to the five-step sequential evaluation procedure outlined in 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4), the ALJ first determined that Plaintiff had not engaged in substantial gainful activity since July 18, 2013. (R. 14.) At step two, the ALJ determined that Plaintiff had severe impairments of “bilateral carpal tunnel syndrome; facet osteoarthrosis in the lower lumbar region; fibromyalgia; major depression; mild sleep apnea; minimal osteophyte formation about the bilateral patellas; obesity; peripheral neuropathy in the lower extremities; polysubstance use, remission; and posttraumatic stress disorder.” (R. 14.) The ALJ found at the third step that no impairment or combination of impairments met or medically equaled the severity of an impairment listed in 20 C.F.R. part 404, subpart P, appendix 1. (R. 15.)

         At step four, the ALJ determined that Plaintiff retained the residual functional capacity (“RFC”)[3] to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), except no more than occasional “kneeling, crouching, and crawling or bending; no more than occasional power gripping; and precluded from working on ladders or ropes or balancing activities in those kinds of things.” (R. 18.) In addition, Plaintiff would require “a sit/stand option . . .; no more than occasional use of ramps or stairs; no more than occasional stooping; no exposure to vibrations that are extreme; no exposure to hazards”; and walking “50 feet at a time at most and then being able to use a cane or a walker, and no walking on uneven surfaces.” (R. 18.) Further, Plaintiff would be “restricted to essentially routine, repetitive 3-4 step tasks with corresponding stressors”; would be restricted to “no more than brief, superficial contact with others”; and would require “reasonably supportive supervision.” (R. 18.) With this RFC, the ALJ concluded that Plaintiff could perform her past relevant work as a medical assembler. (R. 34.) Therefore, the ALJ found Plaintiff was not disabled.

         Plaintiff requested review of the decision, which the Appeals Council denied. (R. 1.) The ALJ's decision thus became the final decision of the Commissioner. (R. 1.) Plaintiff then commenced this action for judicial review. She contends the ALJ failed to properly weigh the medical opinion evidence and failed to fully credit her testimony about the intensity, persistence, and limiting effects of her symptoms. (Pl.'s Mem. Supp. Mot. Summ. J. at 25, 34 [Doc. No. 17].)

         The Court has reviewed the entire administrative record, giving particular attention to the facts and records cited by the parties. The Court will recount the facts of record only to the extent they are helpful for context or necessary for resolution of the specific issues presented in the parties' motions.

         II. Standard of Review

         Judicial review of the Commissioner's denial of benefits is limited to determining whether substantial evidence on the record as a whole supports the decision. 42 U.S.C. § 405(g). “Substantial evidence is less than a preponderance but is enough that a reasonable mind would find it adequate to support the Commissioner's conclusion.” Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002) (citing Prosch v. Apfel, 201 F.3d 1010, 1012 (8th Cir. 2000)). The Court must examine “evidence that detracts from the Commissioner's decision as well as evidence that supports it.” Id. (citing Craig v. Apfel, 212 F.3d 433, 436 (8th Cir. 2000)). The Court may not reverse the ALJ's decision simply because substantial evidence would support a different outcome or the Court would have decided the case differently. Id. (citing Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993)). In other words, if it is possible to reach two inconsistent positions from the evidence, and one of those positions is that of the Commissioner, the Court must affirm the decision. Robinson v. Sullivan, 956 F.2d 836, 838 (8th Cir. 1992).

         A claimant has the burden to prove disability. See Roth v. Shalala, 45 F.3d 279, 282 (8th Cir. 1995). The claimant must establish that he or she 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). The disability, not just the impairment, must have lasted or be expected to last at least twelve months. Titus v. Sullivan, 4 F.3d 590, 594 (8th Cir. 1993).

         III. Discussion

         A. The ALJ's Evaluation of Plaintiff's Symptoms

         Plaintiff argues the ALJ erred in evaluating the intensity, persistence, and limiting effects of her symptoms.

         1. Legal Standards

         It is well-established that an ALJ must consider several factors in evaluating a claimant's subjective symptoms, in addition to whether the symptoms are consistent with the objective medical evidence. Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984); see also Social Security Ruling (“SSR”) 16-3p, 2016 WL 1119029, at *2 (S.S.A. Mar. 16, 2016). Those factors include daily activities; work history; intensity, duration, and frequency of symptoms; any side effects and efficacy of medications; triggering and aggravating factors; and functional restrictions. Polaski, 739 F.2d at 1322; SSR 16-3p, 2016 WL 1119029, at *5. But the ALJ need not explicitly discuss each factor, Goff v. Barnhart, 421 F.3d 785, 791 (8th Cir. 2005), and a court should defer to the ALJ's findings when the ALJ expressly discredits the claimant and provides good reasons for doing so, Dixon v. Sullivan, 905 F.2d 237, 238 (8th Cir. 1990).

         2. The ALJ's Consideration of Plaintiff's Symptoms

          The ALJ's nine-page evaluation of Plaintiff's subjective complaints is one of the most comprehensive this Court has reviewed. The ALJ considered Plaintiff's complaints of constant pain in her back, knees, and shoulders; asserted limitation that she cannot walk without an assistive device; claim that she requires more than four hours of personal care attendant (“PCA”) services per day due to weak muscles, carpal tunnel syndrome, and pain; complaint that anxiety and depression adversely affect her concentration, mood, sleep, appetite, and social life; and statement that prescribed medications caused drowsiness, dry mouth, insomnia, nervousness, and sleepiness. (R. 19.) The ALJ found that Plaintiff's impairments could reasonably cause the alleged symptoms, but that her statements concerning the intensity, persistence, and limiting effects were not consistent with the medical evidence and other evidence in the record. (R. 19.)

         The ALJ identified medical evidence that was inconsistent with Plaintiff's claimed pain, fatigue, and limitations, specifically, infrequent documentation of trigger points and tender points, unremarkable radiological imaging, and physical examinations that documented only mild or minimal limitations and functional restrictions. (R. 20.) The ALJ also noted that prescribed treatment modalities-which included acupuncture, at-home exercises, back and knee braces, ibuprofen, injections, muscle relaxants, pain medication, pool and physical therapy, and weight loss-were relatively conservative. (R. 20.) For example, the ALJ observed, Plaintiff's primary care physician remarked in January 2015 that Plaintiff's pain was controlled with Percocet, water exercise, and aqua therapy. (R. 21.) The ALJ emphasized the repeated advice from Plaintiff's medical providers to engage in pool therapy progressing to land therapy and to maintain an at-home exercise program, because those would provide the greatest symptom relief. (R. 20-21.) Yet the record revealed a pattern of poor compliance, which the ALJ documented in his decision. (R. 21-22.) The ALJ also observed that Plaintiff reported improvement with the prescribed treatments (particularly the back brace, pain medication, pool therapy, and a TENS unit), with walking, with daily exercise, and as the day progressed. (R. 21.) The ALJ concluded that Plaintiff's “course of treatment and the positive results she experienced from the treatment regimen [are] inconsistent with a finding of disability.” (R. 21.)

         The ALJ specifically rejected Plaintiff's claim that she could not walk more than five minutes at a time as inconsistent with record evidence that she claimed to have lost a significant amount of weight on two occasions by walking more. (R. 21.) Logically, the ALJ reasoned, to lose weight by walking, one would have to walk more than five minutes at a time. (R. 21.) In addition, Plaintiff's ability to walk long and far enough to lose weight one year after knee injections in 2014 and radiofrequency ablation treatment for her back pain in 2015 indicated that those treatments were providing long-term relief. (R. 21.) The ALJ found this contradicted Plaintiff's testimony at the hearing that injections provided symptom relief for only a week. (R. 21.) Her testimony was also inconsistent with her other statements to medical providers in the record that injections provided 85% relief for six weeks and that injections had been beneficial for about three months. (R. 21.)

         As to Plaintiff's professed need for a cane, after a thorough review of the medical record, the ALJ discovered that Plaintiff's primary care physician prescribed the cane in 2011 at her request. (R. 22.) There was no contemporaneous evidence of an objective medical need for the cane. (R. 22.) Three years later, Plaintiff asked for a prescription for a walker. (R. 22.) Her provider filled the request despite unremarkable clinical findings. (R. 22.) The ALJ pointed out a lack of medical evidence documenting any restrictions on ambulation or standing without a cane. (R. 22, 23.) The ALJ concluded that the evidence of record indicated that Plaintiff elected to use the assistive devices and they were not medically necessary. (R. 22.)

         Concerning Plaintiff's carpal tunnel syndrome, the ALJ noted that Plaintiff was not compliant with wearing prescribed wrist braces at night in 2013. (R. 23.) The record contains very little evidence of carpal tunnel syndrome symptoms over the next year and a half, as the ALJ observed. (R. 24.) An EMG study in September 2014 revealed very mild to mild carpal tunnel syndrome and no evidence of radiculopathy. (R. 24.) The testing neurologist found the results “significantly improved” from testing in 2011. (R. 24.) Plaintiff and her treating physician agreed her symptoms had improved and no treatment other than splinting was needed. (R. 24.) The ALJ found the conservative treatment, effectiveness of the wrist braces, and imaging studies inconsistent with Plaintiff's claims that she could not button, snap, or grip clothing, and was limited to only occasional fingering and handling. (R. 24.)

         The conservative treatment, effectiveness of the wrist braces, and imaging studies also belied a medical need for a PCA four hours a day. (R. 24.) The ALJ searched the record for daily notes from the PCA, who was Plaintiff's friend, but found none. (R. 24.) The PCA agency failed to provide the daily notes or timesheets at the ALJ's request. (R. 25.) Other records from the PCA agency revealed that services were provided based on Plaintiff's self-reported needs, not objective observations. (R. 25.)

         Regarding Plaintiff's claimed drowsiness, insomnia, and sleeplessness, the ALJ noted a sleep study diagnosis of mild positional sleep apnea and poor sleep hygiene. (R. 25.) The sleep specialist told Plaintiff to stop napping during the day, stop watching television in her bedroom at night, and leave her bedroom if she was not sleepy. (R. 25- 26.) Medication was effective in aiding her sleep, and Plaintiff eventually stopped taking a sleep aid altogether. (R. 26.)

         Turning to Plaintiff's mental impairments, the ALJ found that her panic attacks and depression were situational and exacerbated by her weight gain, her son's incarceration for murder, and having to care for at least four grandchildren after her son was incarcerated. (R. 26.) In addition, medication was generally effective in treating her panic and depression. (R. 26.) Claims of auditory hallucinations and delusional beliefs were sporadic, temporary, situational, treated conservatively, and alleviated by medication. (R. 16-17, 26.) Global Assessment of Functioning (“GAF”) scores[4] were consistent with only mild limitations in functioning, and many mental status examinations were essentially normal. (R. 26.) Thus, the ALJ concluded, the objective medical evidence was inconsistent with Plaintiff's claimed subjective symptoms. (R. 26.)

         Overall, the ALJ found inconsistencies among statements Plaintiff made to her medical providers. (R. 27.) For example, she reported to one provider that her symptoms prevented her from doing anything, but to another that she was getting out and walking more. (R. 27.) Plaintiff's answers and demeanor during a consultative psychological examination in late November 2012 were “completely inconsistent with her presentation at all other treating and examining medical and mental health providers.” (R. 17.) For example, Plaintiff said that 2=6, that Martin Luther King was a United States president, and that she would not know what to do if she saw smoke or fire in a theater. (R. 17.) These answers were inconsistent with all other medical evidence and Plaintiff's educational background. (R. 17.) The inconsistencies in Plaintiff's statements to her providers indicated to the ALJ that her subjective complaints were not reliable. (R. 28.)

         Plaintiff's failure to provide important information to her providers cast further doubt on the veracity of her claimed symptoms. (R. 28.) For instance, Plaintiff did not tell her treating psychiatrist about her chemical dependency history, and the DHS and public health nurses did not know she regularly cared for her grandchildren. (R. 28.) In light of “the numerous inconsistencies and unreliability of her subjective complaints, especially regarding the severity of her symptomatology and resulting limitations, ” the ALJ determined that the evidence of record was inconsistent with the extent of her claimed symptoms. (R. 28.)

         The ALJ next considered Plaintiff's daily activities and found them inconsistent with the extent of her claimed symptoms. (R. 28.) Specifically, the ALJ found her alleged need for PCA services inconsistent with her ability to care for her grandchildren. (R. 28.) In addition, Plaintiff was able to prepare quick meals, run errands, shop, use a computer, pay bills, and travel. (R. 28.) Earlier, in the step-three discussion, the ALJ also observed that Plaintiff was able to utilize Metro Mobility and taxis to run errands and go to medical appointments. (R. 15.) The ALJ found these activities inconsistent with the claimed severity and limiting effects of Plaintiff's symptoms.

         As to the effectiveness of medications, Plaintiff's use of psychotropic medications was sporadic, and Seroquel and Effexor improved her symptoms. (R. 26-27.)

         The ALJ also considered Plaintiff's sporadic work record in evaluating her subjective complaints. (R. 28.) Plaintiff worked only intermittently since 1983, had a long history of multiple employers per year, and only twice earned more than $10, 000 a year in thirty years of employment history. (R. 28.) There is no record of Plaintiff looking for employment or furthering her education after 2012. (R. 28.) Moreover, the ALJ found, Plaintiff's receipt of financial assistance “may have ...


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