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Charles A. v. Berryhill

United States District Court, D. Minnesota

March 25, 2019

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

          ORDER

          HILDY BOWBEER, UNITED STATES MAGISTRATE JUDGE

         Pursuant to 42 U.S.C. § 405(g), Plaintiff Charles A. seeks review of the Acting Commissioner of Social Security's (the “Commissioner”) denial of his application for disability insurance benefits (“DIB”).[1] See generally (Compl. [Doc. No. 3]). The parties filed cross-motions for summary judgment. (Pl.'s Mot. for Summ. J. [Doc. No. 17]; Def.'s Mot. for Summ. J. [Doc. No. 19]). For the reasons set forth below, the Plaintiff's Motion for Summary Judgment is denied and the Commissioner's Motion for Summary Judgment is granted.

         I. BACKGROUND

         A. Procedural History

         Plaintiff protectively filed for DIB on April 15, 2014. (R. 251-57). Plaintiff alleged he was unable to work as a result of of traumatic brain injury, broken ribs, arthritis in both hands, broken wrists, a plate inserted into his right wrist, a right shoulder injury, obesity, somatoform disorder, personality disorder, chronic pain disorder, and possible attention deficit hyperactivity disorder. He asserted an alleged onset date (“AOD”) of June 16, 2011. See, e.g., (R. 49, 348).

         The ALJ issued an unfavorable decision on November 23, 2016. (R. 47-68). Pursuant to the five-step sequential evaluation procedure outlined in 20 C.F.R. § 404.1520(a), the ALJ first determined that Plaintiff had not engaged in substantial gainful activity since at least his AOD of June 16, 2011. (R. 49). At step two, the ALJ determined that Plaintiff had severe impairments of

traumatic brain injury with residual cognitive deficits and post traumatic seizures; bilateral wrist fractures, status post open reduction and internal fixation on the right, and closed reduction and percutaneous pinning on the left; multiple right rib fractures, statues post fixation of the 8th rib; somatoform disorder; personality disorder; and possible attention deficit hyperactivity disorder.

(R. 49). 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. 51-54).

         At step four, the ALJ determined that Plaintiff had the residual functional capacity (“RFC”)[2]

to perform light work as defined in 20 CFR 404.1567(b), except no work at unprotected heights or near hazards; no more than frequent handling, fingering, or reaching; and routine, repetitive, simple work; with no more than brief and superficial contact with coworkers and supervisors . . .; and low stress, defined as no more than routine changes in the work process or work setting.

(R. 54). The ALJ also found at step four that Plaintiff was not able to perform his past relevant work as a stock clerk, construction laborer, auto parts clerk, and furniture assembler because “[t]his work all exceeds the light exertional level set forth in the above residual functional capacity.” (R. 66-67).

         At step five, however, considering Plaintiff's age, education, work experience, and RFC, the ALJ found Plaintiff could work in jobs that exist in significant numbers in the national economy, including: bench assembler, electronics worker, and cleaner. (R. 67). Thus, the ALJ concluded that Plaintiff was not disabled. (R. 68).

         Plaintiff sought review by the Appeals Council, which denied his request. (R. 1- 3). The ALJ's decision therefore became the final decision of the Commissioner. (Id.); see also 20 C.F.R. § 404.981. Plaintiff then commenced this action for judicial review.

         Plaintiff contends the ALJ erred by failing “to properly evaluate vocational testing performed by Courage Kenny that demonstrated [Plaintiff] is not able to engage in competitive employment.” See (Mem. in Supp. of Pl.'s Mot. for Summ. J., “Pl.'s Mem. in Supp.” [Doc. No. 18 at 14-17]).

         B. Factual Background [3]

         1. Plaintiff's Background and Testimony

          As of his date last insured, Plaintiff was thirty-seven years old, and therefore a “younger person.” See 20 C.F.R. § 404.1563(c); see also (R. 115). Plaintiff has a high school education. See (R. 78-79, 200). He worked consistently before the AOD, [4] had some earnings in 2012, which did not rise to the level of substantial gainful activity, and appears not to have worked thereafter. See, e.g., (R. 49, 258, 267-71).

         Plaintiff's impairments can be traced to a June 16, 2011, workplace accident in which he “fell from the top of a tanker truck . . ., fractured both wrists, 6 ribs, punctured his lung, and sustained a [traumatic brain injury]. He had a plate placed in his[] chest cavity to keep his chest cavity expanded to be able to breathe without a respirator.” (Id. at 733; see also (id. at 103-04 (Plaintiff's testimony that he fell from 15 or 20 feet head first onto asphalt))).

         At the hearing before the ALJ on August 23, 2016, Plaintiff discussed his hand injuries and why they prevent him from working. (R. 87-88). For instance, Plaintiff stated that when he bends his left hand, he gets “a sharp shooting pain” and his right hand is “arthritic . . . . It's slow[, but] I can move it.” (R. 88). Plaintiff testified his main problem with his left wrist occurs when he tries to bend it. (R. 107). Plaintiff mentioned that his right wrist does not hurt him as much as his left, but that it is “slower than the left one.” (Id.) Plaintiff believed he could lift ten pounds at most with his left hand. (R. 92). Plaintiff did not believe he was capable of lifting any amount of significant weight with his right hand. (Id. (“The right side don't lift nothing anymore.”)). Plaintiff testified he was not still receiving treatment for his hands because “[t]here is nothing more we can do with my hands.” (R. 83).

         With respect to his activities of daily living, Plaintiff testified that he drives, but that he uses his “left knee and [his] left hand” to control the wheel. (R. 88). He stated he does not use his right hand to grip the wheel because “[t]he right side of my body is trashed and the left side is what I'm learning to use.” (Id.) Plaintiff also stated that he can still use his right hand to feed himself and pick up silverware. (Id.) Plaintiff further mentioned that he can use his right hand for perhaps ten to fifteen minutes before the pain starts and that he has problems with both hands going numb. (R. 90). With respect to the loss of sensation, Plaintiff stated that it takes minutes for the feeling to return, and while experiencing these symptoms, he cannot use his hands at all. (Id.) Plaintiff estimated that he experiences these symptoms approximately six times per day. (Id.) Plaintiff also testified that he is able to use zippers, but prefers to wear clothes that do not use them, like sweat pants instead of jeans. (R. 89). Plaintiff lives with his father and stepmother (R. 95). Plaintiff also testified that he pays his bills with his worker's compensation money. (Id.) Plaintiff stated he cooks frozen meals, like pizza and pot pies, and can fix himself a sandwich. (R. 96). Plaintiff does not do any cleaning, but “will take the garbage out to the can.” (R. 97). Plaintiff testified that he rarely watches television because he cannot concentrate on it. (R. 98).

         As to his rib and chest injuries, Plaintiff testified that he had a plate inserted into his chest to aid with breathing and the plate inhibits his ability to walk, stand, and sit for longer than about an hour. (R. 91-92).

         Plaintiff testified that his traumatic brain injury has prevented him from working because he now has problems “with impulse control, a problem with patience. I can't pay attention. I can't remember.” (R. 94). Plaintiff also testified that he is no longer getting treatment for these issues and that he did not remember who had told him that there was nothing more that could be done for him. (R. 94-95).

         Plaintiff testified, however, that he is continuing to see a seizure specialist. Plaintiff could not specifically speak to the frequency of his seizures because it he does not always know whether his symptoms are seizure symptoms or some other aspects of his cognitive difficulties. (R. 92-93). With respect to his eyesight, Plaintiff testified that his left eye was “shot” and that he could barely see out of it. (R. 93). He acknowledged, however, that he renewed his license earlier in the summer and passed his vision test because he was wearing his glasses. (R. 93).

         There was also discussion during the hearing about the lengths to which Plaintiff had to go to obtain worker's compensation benefits. Plaintiff's attorney described those efforts, but stated that “once the Courage Kenny report had become promulgated or published, whatever, the insurance company gave up, ” and Plaintiff received his worker's compensation benefits. (R. 85).

         Plaintiff also testified about coordinating with “a qualified vocational rehabilitation consultant [provided by the worker's compensation insurance provider] . . . to help me see if there's a pathway back to employment.” (R. 101). He described being given “thousands of leads, ” applying for many of these, and going to “lots of interviews.” (R. 101-02). But at some point, “the insurance company gave up on . . . trying to find [him] work.” (R. 103).

         2. Vocational Expert Testimony

         Steve Bosch, a vocational expert, testified before the ALJ. See generally (R. 108- 13). First, the ALJ posed questions to Bosch regarding a hypothetical person capable of light work, lifting up to twenty pounds occasionally and ten pounds frequently, and further restricted to routine, repetitive, and simple work, avoiding unprotected heights or work near hazards, no more than frequent handling, fingering, or reaching, and no more than brief superficial contacts with coworkers and supervisors. (R. 110). Bosch opined that such a person could not perform Plaintiff's past relevant work. (R. 110-11). That said, Bosch stated that the hypothetical person “could perform bench assembly tasks, ” be employed as an electronics worker, or do “some cleaner work or janitorial work at the light level.” (R. 111).

         The ALJ also questioned Bosch regarding whether the hypothetical person above, with the additional limitations of being “unable to use the right dominant hand in work activity” and limited to the left nondominant hand, would be capable of competitive employment in the identified jobs. (Id.) Bosch opined that would such a person would be unable to perform bench assembly tasks, or be employed as an electronics work, cleaner, or janitor, and did not suggest additional jobs that the hypothetical person with these additional limitations would be capable of performing. (Id.) Finally, the ALJ asked if that hypothetical person would be employable if he also had impulse control ...


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