United States District Court, D. Minnesota
Stephanie M. Balmer, Falsani, Balmer, Peterson & Balmer,
W. Superior St., Duluth, for Plaintiff.
Green, Social Security Administration, for Defendant.
REPORT AND RECOMMENDATION
T. SCHULTZ UNITED STATES MAGISTRATE JUDGE.
M. appeals the Commissioner of Social Security's denial
of his Title II application for a period of disability and
disability insurance benefits alleging a disability onset
date of October 15, 2015, the date he last worked. He
contends that the Appeals Council erred in declining to
review newly submitted medical records, that the ALJ's
RFC finding and the factual determinations on which it is
based are not supported by substantial evidence in the
record, and that the ALJ did not give appropriate weight to
his treating physician's opinion. For the reasons stated
below, the Court recommends that the Commissioner's
decision be affirmed.
Commissioner uses a five-step sequential evaluation process
to determine whether a claimant is entitled to disability
benefits. 20 C.F.R. § 404.1520(a). The Commissioner
evaluates "(1) whether the claimant is currently
employed; (2) whether the claimant is severely impaired; (3)
whether the impairment is, or approximates, a listed
impairment; (4) whether the claimant can perform past
relevant work; and if not, (5) whether the claimant can
perform any other kind of work." Brock v.
Astrue, 674 F.3d 1062, 1064 n.1 (8th Cir.
2012); see also 20 C.F.R. § 404.1520(a)(4).
issued her decision on September 13, 2017. In steps one
through three, she found that Craig M. has not engaged in
substantial gainful activity since October 15, 2015; has
several severe medically determinable impairments - coronary
artery disease; chronic obstructive pulmonary disease; right
diaphragm paralysis; asthma; diabetes with neuropathy; left
shoulder rotator cuff impingement/tendinopathy; obesity;
degenerative disc disease of the cervical spine; and obstructive
sleep apnea - that do not meet or medically equal any listed
impairment contained in 20 C.F.R., Part 404, Subpart P,
Appendix 1; and has the residual functional capacity (RFC) to
perform light work with certain limitations: no climbing of
ladders, ropes, or scaffolds; occasional climbing of ramps or
stairs; occasional stooping, kneeling, or crouching; no
crawling; no tasks that would specifically require the act of
balancing, such as walking along a narrow plank; no work at
unprotected heights; in essentially an indoor,
temperature-controlled type environment, such that there
would not be exposure to extreme heat, extreme cold,
humidity, wetness, fumes, dust, odors, gases, poor
ventilations, and those types of irritants; and allowing for
the opportunity to sit or stand while remaining in the work
space performing the task at hand. R. 387, 390.
four the ALJ found Craig M. was incapable of performing his
past relevant work (PRW) as a heavy equipment operator. R.
399. At step five she found he was capable of performing
other work within the RFC such as small parts assembler,
sub-assembler, and electrical accessories assembler and
therefore he was not disabled R. 400-01.
STANDARD OF REVIEW
Commissioner's denial of disability benefits is subject
to judicial review. 42 U.S.C. §§ 405(g),
1383(c)(3). This Court has authority to "enter, upon the
pleadings and transcript of the record, a judgment affirming,
modifying or reversing a decision of the Commissioner of
Social Security, with or without remanding the cause for a
rehearing." Id. § 405(g) (sentence four).
under the Social Security Act means the "inability 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." Id. § 423(d)(1)(A). Under the
regulations, disability means that the impairments) is/are so
severe that the claimant is not only unable to engage in
previous work, but cannot engage in any other kind of
substantial gainful employment that exists in the national
economy. Id. § 423(d)(2)(A).
Court "must affirm the Commissioner's decision if it
is supported by substantial evidence on the record as a
whole." Telkey v. Bamhart, 433 F.3d 575, 577
(8th Cir. 2006). Substantial evidence is
"less than a preponderance, but enough that a reasonable
mind might accept as adequate to support a conclusion."
Lewis v. Bamhart, 353 F.3d 642, 645 (8th
Cir. 2003). On review, the Court considers "both
evidence that detracts from and evidence that supports the
Commissioner's decision." Hartfield v.
Bamhart, 384 F.3d 986, 988 (8th Cir. 2004).
If it is possible, based on the evidence in the record, to
reach two inconsistent decisions, and one of those decisions
is the Commissioner's position, the decision must be
affirmed. Dixon v. Bamhart, 353 F.3d 602, 605
(8th Cir. 2003). In other words, the denial of
benefits will not be disturbed "so long as the ALJ's
decision falls within the available zone of choice. An
ALJ's decision is not outside the zone of choice simply
because [the reviewing court] might have reached a different
conclusion had [it] been the initial trier of fact."
Bradley v. Astrue, 528 F.3d 1113, 1115
(8th Cir. 2008); see also Bland v. Bowen,
861 F.2d 533, 535 (8th Cir. 1988) ("The
concept of substantial evidence . . . embodies a zone of
choice within which the Secretary may grant or deny benefits
without being subject to reversal on appeal.").
claimant bears the burden of proving entitlement to
disability benefits. See 20 C.F.R. §
404.1512(a); Young v. Apfel, 221 F.3d 1065, 1069 n.5
(8th Cir. 2000). Once the claimant demonstrates
that he or she cannot perform past work, the burden
"shifts to the Commissioner to prove, first that the
claimant retains the residual functional capacity to do other
kinds of work, and, second that other work exists in
substantial numbers in the national economy that the claimant
is able to do." Nevland v. Apfel, 204 F.3d 853,
857 (8th Cir. 2000).
Newly Submitted Medical Records
M. contends that the Appeals Council erred in declining to
review the ALJ's decision based on the additional records
he submitted. PI. Br. 5-7, Docket No. 14.
Appeals Council will review an ALJ's decision when it
"receives additional evidence that is new, material, and
relates to the period on or before the date of the hearing
decision, and there is a reasonable probability that the
additional evidence would change the outcome of the
decision." 20 C.F.R. § 404.970(a)(5) (eff. Jan. 17,
2017). The applicant must also show "good cause"
for not timely submitting the evidence due to certain
specified reasons. Id. § 404.970(b). However,
the Appeals Council did not reach the issue of good cause
when it stated its reasons for denying Craig M.'s request
the Appeals Council denies review of an ALJ's decision
after reviewing newly submitted evidence, a reviewing court
does not evaluate the council's decision to deny review
but rather examines the record as a whole, including the
additional evidence, to determine whether it supports the
ALJ's decision. See McDade v. Astrue, 720 F.3d
994, 1000 (8th Cir. 2013). When the Appeals
Council denies review without substantively considering newly
submitted evidence, the reviewing court may remand the case
if it finds the evidence is new, material, and relates to the
period of disability at issue. See Nelson v.
Sullivan, 966 F.2d 363, 366 (8th Cir. 1992);
20 C.F.R. § 404.970(a)(5) and (c).
relevant period for Craig M.'s disability benefits
application is from October 15, 2015, his last day of work as
a heavy equipment operator, and September 13, 2017, the date
of the ALJ's decision denying benefits. The Appeals
Council reviewed the records that pre-date the ALJ's
decision (November 8, 2011 to July 11, 2017 [R. 430-586]) and
found they do not show a reasonable probability of changing
the outcome of the ALJ's decision. The council therefore
denied his request for review of the ALJ's decision. Jan.
26, 2018 Notice of Appeals Council Action, R. 1-4.
respect to the records that post-date the ALJ's decision
(October 2, 2017 through November 21, 2017 [R. 16-64,
66-381]), the Appeals Council concluded they do "not
relate to the period at issue" and therefore did
"not affect the decision about whether you were disabled
beginning on or before September 13, 2017." R. 2. The
council advised him of his right to file a new application to
consider whether he was disabled after September 13, 2017. R.
Court has examined the records that pre-date the ALJ's
September 13, 2017 decision. For the reasons stated in the
individual sections below, the Court finds they are not
material to the ALJ's RFC determination and her
conclusion that Craig M. was not disabled on or before
September 13, 2017.
Court also reviewed the treatment records that post-date the
ALJ's decision and finds they do not relate to the period
of disability at issue here. Craig M. asserts they should
have been considered because they "involved the same
medical conditions as were at issue at hearing and provided
further relevant evidence regarding the nature and severity
of those conditions and their resulting functional
impacts." PI. Br. 7, Docket No. 14. However, this
assertion does not accurately characterize the records from
October and November 2017, and Craig M. has not identified or
offered any explanation of how any of those records sheds
light on his functional work-related limitations that existed
on or before September 13, 2017.
October and November 2017 records document Craig M.'s
hospitalization for neck surgery (cervical laminectomy) with
abscess drainage, a serious neck infection, in-patient
post-surgery physical therapy, and post-surgery follow-up
after his discharge from the hospital. His hospitalization
came about after he went to see his treating physician, Dr.
James Montana, on October 2, 2017 when he experienced an
episode of severe neck pain immediately after he lifted a
heavy wet 18-inch maple log on approximately September 30,
2017. R. 67, 200, 317-18, 344-45, 359.
Montana's record states, "Patient presents with Neck
Pain - hurt on Saturday lifting a piece of wood - severe neck
pain that is limiting rotational, flex and extension to a
much greater than usual extent. It occurred suddenly when he
was lifting 18 inch wet maple log for splitting. He denies
radiculopathy down arms or change in LE function." R.
344-45. Other hospital records also document his report that
this pain was unlike his previous or usual neck pain:
"He stated that the neck pain is significantly worse
than his usual pain from degenerative disc disease." R.
359; "[N]eck pain occurred on approximately September
30, when he was lifting a heavy log. The pain was in his
parotid region down to his neck and became progressively
severe. This was unlike his usual neck pain that he had from
degenerative disease." R. 67; "On 9/30 he was
lifting a wet heavy maple log and had immediate onset of
severe left upper neck pain. Patient does have history of
chronic neck pain due to degenerative disc disease but never
had this much pain. Denies tingling, numbness or
weakness." R. 200. A post-operative medical record says
he reported that, pre-hospitalization, he "was
independent with activities of daily living, mobility, home
management. Cuts/hauls wood." R. 68.
M. points to two records: an October 23, 2017 post-surgery
in-patient physical therapy record at R. 98 that assessed
motor coordination deficits in both hands, and a
post-discharge Infectious Disease follow-up appointment on
November 21, 2017 at R. 27 and 31 in which he reported
numbness/tingling in his fingers that he attributed to his
diabetic neuropathy. PI. Br. 7, Docket No. 14. Simply
referencing a preexisting medical condition or symptoms,
however, has no bearing on the assessment of his functional
limitations as of the ALJ's September 13, 2017 decision.
See Trenary v. Bowen, 898 F.2d 1361, 1364
(8th Cir. 1990) (ALJ's proper focus is on the
functional limitations caused by the claimant's
impairment). This is especially true when, as here, the
records reflect follow-up medical care for recovery from
surgery and an infection that had seriously weakened
January 2014 EMG
M. alleges that a January 2014 EMG [R. 554-59] is
"extremely material to the determinations regarding the
nature and extent of [his] bilateral upper extremity
symptoms, especially when considered with the construct of
[his] medical providers' ongoing struggles to determine
the true nature of [his] upper extremity problems." PI.
Br. 6, Docket No. 14. He states that the ALJ referred to the
absence of the EMG in the treatment records she reviewed.
Id. at 6-7; see R. 388, 394, 399. But the
ALJ did not base her RFC determination on the absence of the
EMG in the record; she based it on the multiple diagnoses,
symptoms, and resulting functional limitations that were
supported by the record. Moreover, the EMG itself does not
set forth any functional limitations for any of his symptoms.
M. acknowledges that particular symptoms are not necessarily
attributable to a particular impairment or diagnosis.
See PI. Br. 10 ("An added complication is the
confusion over whether Plaintiffs symptoms were from his
diabetes, radicular symptoms from his neck, left shoulder
impingement symptoms, and/or carpal tunnel/ulnar nerve
symptomology."), 11 ("It is clear from the record
that Plaintiffs providers were ruling out various conditions
as they attempted to treat Plaintiffs multitude of
symptoms."), 12 ("It is clear from the January 2014
EMG that there was a good deal of confusion over the etiology
of Plaintiffs bilateral upper extremity symptoms."),
Docket No. 14. The "missing" EMG might have made a
difference if any provider had relied on it to support an
opinion on Craig M.'s functional limitations and if the
ALJ had then discounted the provider's opinion because no
EMG was in the record. But that is not the circumstance here.
M. does not explain how the January 2014 EMG is material to
his functional work-related limitations as they existed at
the time of the September 13, 2017 ALJ decision. He worked as
a heavy equipment operator until October 15, 2015, twenty-one
months after the EMG. Whatever the January 2014 EMG showed
with respect to his extremities, any symptoms did not prevent
him from performing that job. By the time of the ALJ's
decision in September 2017 she found that he could not
perform this past work based on the evidence in the record.
then determined he had the RFC to perform light work with the
following additional limitations:
no climbing of ladders, ropes, or scaffolds; occasional
climbing of ramps or stairs; occasional stooping, kneeling,
or crouching; no crawling; no tasks that would specifically
require the act of balancing, such as walking along a narrow
plank; no work at unprotected heights; in essentially an
indoor, temperature-controlled type environment, such that
there would not be exposure to extreme heat, extreme cold,
humidity, wetness, fumes, dust, odors, gases, poor
ventilations, and those types of ...