United States District Court, D. Minnesota
ORDER
ELIZABETH COWAN WRIGHT, UNITED STATES MAGISTRATE JUDGE
This
matter is before the Court on Plaintiff Paul K.W.'s
(“Plaintiff”) Motion for Summary Judgment (Dkt.
No. 16) and Defendant Acting Commissioner of Social Security
Nancy A. Berryhill's (“Defendant”) Motion for
Summary Judgment (Dkt. No. 19). Plaintiff filed this case
seeking judicial review of a final decision by Defendant
denying his application for disability insurance benefits.
For the reasons stated below, Plaintiff's Motion is
denied, and Defendant's Cross-Motion is granted.
I.
BACKGROUND
Plaintiff
filed a Title II application for disability insurance
benefits on October 14, 2014, alleging disability beginning
on March 4, 2013. (R. 140.)[1] Plaintiff later amended his
alleged disability onset date from March 4, 2013 to January
1, 2014. (R. 11.) Plaintiff applied for benefits,
alleging disability due to a spinal tumor (atypical) grade 2
meningioma, leg numbness, loss of
proprioception[2] (not knowing where a leg is at), burning
sensation of the left foot, a learning disability, and
balance issues. (R. 57.) His application was denied initially
and on reconsideration. (R. 82, 89.) Plaintiff requested a
hearing before an administrative law judge
(“ALJ”), which was held on January 17, 2017
before ALJ Virginia Kuhn. (R. 11-23.) The ALJ issued an
unfavorable decision on February 22, 2017, finding that
Plaintiff was not disabled through the date of the ALJ's
decision. (R. 23.)
Following
the five-step sequential evaluation process under 20 C.F.R.
§ 404.1520(a), [3] the ALJ first determined at step one that
Plaintiff had not engaged in substantial gainful activity
since January 1, 2014. (R. 13.)
At step
two, the ALJ determined that Plaintiff had the following
severe impairments: atypical grade 2 meningioma of the
thoracic spine after a March 2013 surgery, and obesity.
(Id.) The ALJ determined that Plaintiff's other
impairments were not severe, including his learning
disability, hypertension, carpal tunnel syndrome, gallstones,
and sleep apnea. (R. 14.)
At the
third step, the ALJ determined that Plaintiff did not have an
impairment that meets or medically equals the severity of one
of the listed impairments in 20 C.F.R. part 404, subpart P,
appendix 1. (R. 15.)
At step
four, after reviewing the entire record, the ALJ concluded
that Plaintiff had the following residual functional capacity
(“RFC”):
[T]o perform light work as defined in 20 CFR 404.1567(b)
except no climbing of ladders, ropes or scaffolds, occasional
climbing of ramps and stairs, no tasks that would
specifically require the act of balancing for completion such
as walking along a narrow plank or something of that nature
where the actual act of balancing would be a required element
for completion of the task, occasional stooping, kneeling,
crouching and crawling, no work at unprotected heights or
with hazardous machinery, no work tasks that would need to be
performed specifically on uneven terrain, and allowing the
opportunity to sit or stand at-will while remaining in the
work space performing the tasks at hand.
(R. 15-16.)
The ALJ
concluded that Plaintiff was unable to perform his past
relevant work as a diesel mechanic or service mechanic as it
exceeded his RFC. (R. 21.)
At the
fifth step of the sequential analysis, and based on the
testimony of the vocational expert (“VE”), the
ALJ found that through the date last insured, considering the
Plaintiff's age, education, work experience, and residual
functional capacity, Plaintiff was capable of making a
successful adjustment to other work that existed in
significant numbers in the national economy including,
occupations of collator operator (DOT code 208.685-010), and
electronics worker (DOT code 726.687-010). (R. 22.)
Accordingly, the ALJ deemed Plaintiff not disabled. (R.
22-23.) Plaintiff was 52 years old at the time the ALJ's
decision. (R. 23, 140.)
Plaintiff
requested review of the decision. (R. 4.) The Appeals Council
denied Plaintiff's request for review, which made the
ALJ's decision the final decision of the Commissioner.
(R. 1-3.) Plaintiff then commenced this action for judicial
review. 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.
MEDICAL RECORD
Plaintiff
had been struggling with progressive lower extremity symptoms
in 2013. (R. 256, 262.) A lesion was found at the T2 with
cord compression and edema. (Id.) A T1-3 laminectomy
with a resection of an intradural atypical grade 2 meningioma
tumor was performed on March 4, 2013. (Id.; see
also R. 329-30.) Some of the T3 root was involved and
sacrificed as well. (Id.)
On
December 27, 2013, Plaintiff saw Bryan P. O'Neill, M.D.,
as a part of a continued follow-up related to his surgery.
(R. 265.) Plaintiff asserted that his general health had been
satisfactory and that although the weather had prevented him
from doing the conditioning work that he needed to do through
walking, he now had a stationary bicycle, and he would use
that for conditioning. (Id.) It was also noted in
the report that Plaintiff had been turned down for disability
benefits. (Id.) While Plaintiff estimated that his
neurological function to be about the same, he admitted that
he had not begun an intensive conditioning regimen because of
the weather. (Id.) During the physical examination
of Plaintiff, Dr. O'Neill noted that there was
“just some very minor wavering when he stands with his
feet together and eyes closed. His walking within the
confines of the room seems to be quite satisfactory.”
(Id.) Dr. O'Neill opined, “[t]he patient
has made a good postoperative recovery. His neurological
function is at a very good status, and I expect that it will
continue to improve over time.” (Id.) Dr.
O'Neill told Plaintiff that the burning/prickling
sensation in his right leg would get better eventually based
on the body's ability to repair itself, and his ability
to adapt to the sensation. (R. 266.) Dr. O'Neill told
Plaintiff to seek a Social Security disability attorney to
help him with his disability claim. (Id.)
Plaintiff
next saw Dr. O'Neill on May 23, 2014 for a neurological
assessment. (R. 284.) Plaintiff represented that his health
had been satisfactory. (Id.) Plaintiff had increased
his activity and had lost approximately 10 pounds since his
last visit with Dr. O'Neill, but had not been able to
return to work because of concerns regarding his ability to
do his prior job. (Id.) Plaintiff also noted that he
had been denied twice for Social Security benefits and did
not have legal representation. (Id.) While Plaintiff
still had paresthesia[4] in his entire right leg, the sense of
fullness in the right leg was better (although he still
favored his right leg when he walked), and he no longer had
to look at his feet to compensate for the
deafferentation.[5] (Id.) A neurological examination
was performed and compared to Plaintiff's prior
examination, which Dr. O'Neill found “may be
slightly better compared to the prior examination.” (R.
286.) Further, Dr. O'Neill saw no evidence of residual or
recurrent disease. (Id.) Dr. O'Neill told
Plaintiff that he would likely have a neurologic impairment
and that it would likely be similar to what he was
experiencing, although Dr. O'Neill believed that there
would be a mild improvement. (Id.) According to Dr.
O'Neill, the most functionally significant part of his
impairment was the deafferentation in the right lower
extremity. (Id.) Dr. O'Neill noted that this
could be problematic given the nature of his job as a
mechanic. (Id.) Dr. O'Neill and Plaintiff
discussed a work simulation approach, but they decided to
revisit this issue when Plaintiff returned in six months.
(Id.) Dr. O'Neill also communicated to Plaintiff
that he would be happy to complete any forms in support of
his disability claims. (Id.)
On May
28, 2014, Plaintiff had a radiation oncology follow-up with
Christopher L. Hallemeier, M.D. (R. 306.) Plaintiff reported
that he has “done reasonably well since his last
follow-up. He feels that the lower extremity paresthesias
have modestly improved.” (R. 307.) There was no clear
evidence of a recurrent or residual meningioma that was
observed as part of Plaintiff's MRI. (R. 307, 324.)
Plaintiff reported no fatigue or pain. (R. 307.)
On July
18, 2014, Plaintiff saw his family practitioner Dr. Steve
Kivi related to a Boy Scout physical. (R. 442.) Plaintiff
stated he was feeling good, but he did have some difficulty
with a pins and needle sensation in his right leg since his
surgery and it had been recommended that he not place himself
in situations where he is climbing ladders or is working at
heights due to his increased risk of falls. (Id.)
The neurological examination revealed normal deep tendon
reflexes in Plaintiff's lower extremities, normal
sensation in the lower extremities, and his gait was normal.
(R. 443.) Dr. Kivi qualified Plaintiff for the Boy Scout
camp. (Id.)
Plaintiff
next saw Dr. O'Neill on August 22, 2014, related to
Plaintiff's attempts to obtain Social Security benefits.
(R. 304.) Dr. O'Neill noted that Plaintiff still had
problems with axial (core) activities and ascending and
descending grades, particularly when distracted or when the
light was poor. (Id.) Plaintiff gave several
examples where he had fallen with injuries using steps or
stairs, including one instance when he was carrying 50
pounds. (Id.) However, Dr. O'Neill also opined
that Plaintiff “demonstrated that he has no problems
with use of his arms and hands, including over his head. He
demonstrated he was able to do a catcher's crouch and
rise as well as to turn.” (Id.) Dr.
O'Neill noted he had stated on Plaintiff's
activity/work status report that Plaintiff had
deafferentation of the lower trunk and right leg as a result
of his spinal cord tumor and subsequent surgery and
radiotherapy, and that it was likely that this would be a
permanent deficit, although Plaintiff may note functional
improvement over time or could learn to live with the
impairment. (Id.) Dr. O'Neill did not believe
that Plaintiff could return to his previous employment at
that time, but believed that an unspecified accommodation,
such as a supervisor position, might serve Plaintiff well.
(Id.)
Plaintiff
again saw Dr. O'Neill on December 8, 2014 for a neurology
consult. (R. 340.) Plaintiff reported that he continued to
increase activity, and he represented that his functionally
status had improved slightly since he was last seen in August
2014. (Id.) He was still experiencing paresthesias
in the right leg, but the sense of fullness in the right leg
was better. (Id.) Plaintiff no longer had to look at
his feet to compensate for the deafferentation, and he was
able to navigate in the dark and when he closes his eyes in
the shower. (Id.) Plaintiff also reported that he
had done better since August 2014 in terms of injuries,
having only fallen once on ice accidently with his wife.
(Id.) Dr. O'Neill noted during Plaintiff's
physical examination that there was an improvement in several
of the domains of his right leg, such as joint position sense
at the right toes, Romberg sign, [6] and the mechanics of
walking. (Id.) There was also a slight increase in
tone at the right knee. (Id.) On the same date,
Plaintiff reported to Dr. Hallemeier that he had experienced
“stability to slight improvement in his lower extremity
paresthesias.” (R. 339.) Plaintiff also reported no
fatigue and his pain level was 4 out of 10. (Id.)
On
December 31, 2014, State Agency Physician, Susan Johnson,
M.D. opined that Plaintiff had the ability to occasionally
lift or carry 20 pounds; could frequently lift or carry 10
pounds; could stand and walk with normal breaks for six hours
out of an 8-hour work day; and had an unlimited ability to
push and pull (other than those related to the limitation on
lifting and or carrying). (R. 61-62.) According to Dr.
Johnson, Plaintiff could occasionally climb ramps and stairs,
climb ladders, balance, stoop, kneel, crouch, and crawl. (R.
62.) Further, Dr. Johnson found that Plaintiff had no
manipulative, visual, or communicative limitations. The only
environmental limitation was: “Avoid concentrated
exposure” to hazards. (R. 62-63.) The environmental
limitations were based on the fact that Plaintiff was to
avoid uneven surfaces and unprotected heights. (R. 63.) Dr.
Johnson believed that Plaintiff could sustain a light
physical RFC. (R. 64.)
Plaintiff
returned to Dr. O'Neill for a reassessment of his
meningioma on February 16, 2015. (R. 337.) Plaintiff again
reported an increase in his activity and improvement in his
functional status. (Id.) While Plaintiff had
paresthesias, his sense of fullness was better, and he no
longer had to look at his feet to compensate for
deafferentation. (Id.) Dr. O'Neill reported
virtually no change in Plaintiff's neurological
examination from that recorded in December 2013.
(Id.) Dr. O'Neill opined that he did not believe
that Plaintiff's neurological deficit would allow him to
return to the level of functioning necessary perform his
previous employment. (Id.)
On
reconsideration of the Social Security Administration's
(“SSA”) benefits determination, State Agency
Physician Charles Grant, M.D. reevaluated Plaintiff's
medical records and opined on March 18, 2015 that Plaintiff
had the same RFC and limitations as previously assigned by
State Agency Physician, Dr. Johnson. (R. 72-75.) Dr. Grant
noted:
[H]e was seen for a f/u with neuro on 02/16/2015.visit notes
that he has continued to increase his activity. He still has
paresthesias in his left leg. The clmts past work was talked
about and it was felt that he would not be able to return to
it in full capacity. A review of the initial assessment finds
it is consistent with the mer and the new mer would not
change it.
(R. 71.)
On
September 14, 2015, Plaintiff had a radiation oncology
follow-up with Dr. Hallemeier. (R. 344.) Plaintiff reported
that his neurologic function was unchanged over the previous
6 months and Dr. Hallemeier concluded that Plaintiff's
neurological function was stable. (Id.) Plaintiff
reported no fatigue. (R. 345.)
On
September 15, 2015, Plaintiff saw Dr. O'Neill for a
neurologic assessment. (R. 346.) Plaintiff's general
health had been satisfactory, and he continued to increase
his activity. (Id.) Plaintiff had no pain.
(Id.) Plaintiff noted that the deafferentation in
his leg did not require visual feedback unless he was in
complex surroundings, such as large crowds at the State Fair.
(Id.) Plaintiff also reported that towards the end
of the day he had mechanical-type pain that extended up from
the upper neck and shoulders into the head and forehead
regions. (Id.) Plaintiff took Tylenol to treat his
pain. (Id.) Plaintiff noted that he had been
terminated from his employment and denied Social Security
benefits. (Id.) Dr. O'Neill reiterated his
willingness to help in any way he could, going so far to say
that “I have told him I am more than happy to assist in
his getting a favorable disability decision.” (R.
346-47.) According to Dr. O'Neill, one of Plaintiff's
main problems in addition to the mechanical-type pain
described above was the neuropathic pain that extends at
approximately the T4 dermatome, left more than right. (R.
346.) It rarely interfered with sleep but often manifested
during periods of ...