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Craig M. v. Berryhill

United States District Court, D. Minnesota

June 10, 2019

Craig M., Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          Stephanie M. Balmer, Falsani, Balmer, Peterson & Balmer, W. Superior St., Duluth, for Plaintiff.

          Linda Green, Social Security Administration, for Defendant.

          REPORT AND RECOMMENDATION

          DAVID T. SCHULTZ UNITED STATES MAGISTRATE JUDGE.

         Craig 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.

         I. ALJ DECISION

         The 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).

         The ALJ 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[1]; 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.

         At step 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.

         II. STANDARD OF REVIEW

         The 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).

         Disability 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).

         This 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.").

         The 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).

         III. ANALYSIS

         A. Newly Submitted Medical Records

         Craig 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.

         The 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 for review.[2]

         When 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).

         The 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.

         With 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. 2.

         The 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.

         The 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.

         The 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.

         Dr. 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.

         Craig 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 him.[3]

         B. January 2014 EMG

         Craig 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.

         Craig 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.

         Craig 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.

         She 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 ...

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