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Paul K.W. v. Berryhill

United States District Court, D. Minnesota

May 10, 2019

Paul K.W., Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.



         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.


         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 ...

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