United States District Court, D. Minnesota
BOWBEER, UNITED STATES MAGISTRATE JUDGE
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”). 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
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).
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).
four, the ALJ determined that Plaintiff had the residual
functional capacity (“RFC”)
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).
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).
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.
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]).
Factual Background 
Plaintiff's Background and Testimony
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,
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).
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))).
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).
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).
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).
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.
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).
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).
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).
Vocational Expert Testimony
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).
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 ...