United States District Court, D. Minnesota
ORDER
ELIZABETH COWAN WRIGHT UNITED STATES MAGISTRATE JUDGE
This
matter is before the Court on Plaintiff Daniel A.'s
(“Plaintiff”) Motion for Summary Judgment (Dkt.
24) (“Motion”) and Defendant Commissioner of
Social Security Andrew Saul's (“Defendant”)
Cross-Motion for Summary Judgment (Dkt. 25)
(“Cross-Motion”). Plaintiff, proceeding pro se,
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 an application for benefits under Title II of the
Social Security Act (42 U.S.C. §§ 416(i) & 423)
on June 17, 2014, claiming that he has been disabled since
March 1, 2011 due to back and neck problems. (R. 25,
413).[1] Plaintiff's application was denied
initially (R. 340, 353-55) and on reconsideration (R. 350-51,
363-64). Plaintiff requested a hearing before an
administrative law judge (R. 367), which was held on April
15, 2016 before Administrative Law Judge (“ALJ”)
Mary M. Kunz. (R. 25.) Plaintiff was represented by legal
counsel at the hearing before the ALJ. (R. 312.) The ALJ
issued an unfavorable decision on May 4, 2016. (R. 25, 33.)
Following
the five-step sequential evaluation process under 20 C.F.R.
§ 404.1520(a), the ALJ determined that Plaintiff last
met the insured status requirements for the Social Security
Act on December 31, 2011.[2] (R. 27.) The ALJ went on to determine
that Plaintiff had not engaged in substantial gainful
activity since April 1, 2011, the alleged onset date, through
the last date of insured of December 31, 2011. (Id.)
At step
two, the ALJ determined that Plaintiff had the following
severe impairments at the date last insured: asthma,
degenerative disc disease of the lumbar spine with L5-Sl
laminotomy and discectomy on April 27, 2011 and revision on
October 12, 2011. (Id.) The ALJ determined that
Plaintiff's other physical impairments were not severe
during the period Plaintiff was insured:
Many other impairments in the record were not diagnosed and
thus not established as medically determinable impairments
until long after the date last insured. Specifically, the
claimant testified to the inability to do his past work
because of neck pain and left arm tingling. Imaging in April
2012 confirmed moderate degenerative disc disease, but no
evidence of nerve root involvement. (Exhibit 1F, at pages 13-
14) The record indicates that he did not seek evaluation of
these symptoms until April 4, 2012, four months after the
date last insured. At that time, the physical examination
indicated he had tenderness to palpation and decreased range
of motion of the cervical and lumbar spine but negative
straight leg raising, normal strength and sensation, and
normal tendon function in the hand. (Exhibit 1F, at pages
9-10) There was little follow-up of this condition until
March 5, 2013, when the claimant complained to Dr. Santos of
neck and arm pain for the past three months and, for the
first time, the physical examination indicated he had
decreased sensation over the ulnar aspect of the left
forearm. (Exhibit 1F, at page 11) Unlike in March 2013, there
are no clinical findings or even complaints of symptoms to
support a finding that this was a severe impairment on or
prior to the date last insured. (See Exhibit 4F, at pages
6-7, 9-10, Exhibit 5, at page 25).
(R. 27-28.)
At the
third step, the ALJ determined that through the date of last
insured Plaintiff did not have an impairment that met or
medically equaled the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R.
28.)
At step
four, after reviewing the entire record, the ALJ concluded
that Plaintiff had the following residual functional capacity
(“RFC”): “perform light work, as defined in
20 CFR 404.1567(b), [3] except further limited by no more than
occasional bending, stooping, kneeling, crouching, crawling,
or climbing, and should not involve exposure to high
concentrations of air pollutants.” (R. 28.) Based on
this RFC, the ALJ determined that Plaintiff was capable of
past relevant work as a telemarketer and phone order clerk,
which the vocational expert (“VE”) testified that
a hypothetical individual with the determined RFC could
perform, especially in light of the fact that the positions
are sedentary in nature.[4] (R. 32.)
Accordingly,
the ALJ found Plaintiff not disabled. (R. 32.)
Plaintiff
requested review of the decision. (R. 1.) The Appeals Council
denied Plaintiff's request for review, which made the
ALJ's decision the final decision of the Commissioner.
(Id.) 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.
RECORD
On
November 9, 2010, Plaintiff underwent an assessment for
physical therapy. (R. 231.) Plaintiff reported an onset of
the lower back pain approximately 15 years earlier with
lifting. (Id.) He seemed to get over that in time,
but noted that flare-ups began about three years later, which
seemed related to a desk job and decreased activity level.
(Id.) Flare-ups were occurring more often and would
last for 1-2 weeks. (Id.) They were triggered by
activities such as yard work. (Id.) Plaintiff
reported feeling pain daily, even between flare-ups.
(Id.) His last big flare-up occurred approximately
six months earlier. (Id.) The flare-ups would limit
bending. (Id.) The pain was rated at 0 to 5 out of
10. (Id.) He denied radicular symptoms.
(Id.) The pain was described as aching and it was
intermittent. (Id.) Plaintiff's lifting was
limited to about 60 pounds. (Id.) Plaintiff avoided
full bending and had some pain dressing. (Id.)
Plaintiff was prescribed with manual therapy and exercises to
improve flexibility, strength, and function. (R. 233.)
Plaintiff did not schedule the prescribed physical therapy
sessions. (R. 235.)
On
April 1, 2011, Plaintiff reported to an urgent clinic with
back pain. (R. 166.) Plaintiff noted that the symptoms began
a “day(s) ago . . . .” (Id.) His history
of back pain was reported as “recurrent self limited
episodes of low back pain in the past.” (Id.)
The pain was exacerbated by bending and changing position.
(Id.)
On
April 14, 2011, Plaintiff had an MRI performed on his lumbar
spine. (R. 39.) The imaging report noted that Plaintiff had
“[l]ow back pain, sciatica.[5] Less than six-week
history.” (Id.) The MRI showed that the lumbar
vertebral bodies were in normal anatomic alignment, but that
there were multilevel degenerative changes, most notably at
¶ 5-S1, with a disc protrusion causing moderate to
severe narrowing of the spinal canal and impinging upon the
bilateral descending S1 nerve roots. (R. 39-40.) Plaintiff
was diagnosed with left L5-S1 herniated nucleus pulposus and
left S1 radiculopathy. (R. 43.) He had exhausted nonoperative
measures and continued to have unspecified significant
symptoms. (R. 44.)
On
April 22, 2011, Plaintiff saw Jacqueline A. Geissler, M.D.
for a surgery consult. (R. 655.) Plaintiff had reported a
one-month history of severe back pain which was exacerbated
by movement with pain going down his left side to the plantar
aspect of his foot and his heel. (Id.) Plaintiff
represented that his pain was constant and became worse with
certain movements or positions, although there was no
position which relieved or improved this pain. (Id.)
Plaintiff rated his back pain at a level of 9 or 10.
(Id.) His past medical or surgical history made no
mention of neck problems. (Id.) Plaintiff had pain
exacerbated with movement in general, a nonantalgic gait, he
was able to heel walk, toe walk, and squat and rise with good
execution, although it was uncomfortable. (R. 656.) Given the
MRI and his symptoms, Dr. Geissler believed it would be
reasonable to proceed with a surgical intervention.
(Id.)
On
April 27, 2011, Plaintiff had the following surgical
procedures performed on outpatient basis: microscopic
laminotomy of left L5-S 1; microscopic partial discectomy,
left L5-S1; and microscopic left S1 nerve foraminotomy. (R.
43.) The post-operative plan was for Plaintiff to mobilize as
tolerated, he was sent home with Percocet, which he was to
take as needed for pain, and was to be seen back in the
clinic in six weeks' time. (R. 44.)
Plaintiff's
pain had resolved, however, he had a reoccurrence of pain in
August 2011. (R. 55.) On August 30, 2011, Plaintiff had
another MRI related to low back pain and possible left leg
radiculopathy. (R. 46.) The MRI showed a large recurrent
central to slightly left central L5-S1 disc herniation
resulting in severe central and left subarticular stenosis,
[6] a
moderate bilateral foraminal stenosis, and stable L4-L5
degenerative disc disease with moderate central and bilateral
foraminal stenosis. (R. 47.)
On
September 16, 2011, Plaintiff saw Edward Santos, M.D.,
related to his back pain. (R. 48.) Plaintiff represented that
he had been doing well since his surgery until a few weeks
prior to his visit, when he started to have recurrent low
back pain. (Id.) While the MRI showed a recurrent
herniation, Plaintiff represented that his pain was
manageable with 1-2 Vicodin per day. (Id.) Dr.
Santos found as follows: “I spoke with Daniel
and given his mild picture, I have advised
continued nonoperative treatment. If upon discontinuation of
the Vicodin and with more activities his pain escalates, then
I have recommended performing a revision microdiskectomy. He
will call us over the next few days and update us and we will
then plan accordingly.” (R. 48-49 (emphasis added).)
As the
result of continuing symptoms and the exhaustion of
nonoperative measures, Plaintiff underwent a revision left
L5-S 1 laminotomy, revision left microscopic L5-S1
microdiskectomy, and revision left L5-S1 nerve decompression
on October 12, 2011. (R. 52-53.) Dr. Santos provided that the
post-operative plan was to have Plaintiff mobilize as
tolerated. (Id.) He was restricted from bending,
lifting more than ten pounds, and twisting for six weeks.
(Id.)
Plaintiff
next saw a medical provider on December 13, 2011. According
to Jess Brehmer, M.D.:
Since the surgery in 10/2011, the patient reports he has been
doing well. He has been on unemployed even before his 1012011
surgery thus, he states he has not been doing
“anything.” The patient states he has not been
working. He also reports that he is not doing anything in the
way of physical activities including yard work or any
shoveling just because he has been afraid and cautious to
reinjure his back. Ultimately though, he is doing well. He is
not having any issues with pain, denies any radicular
symptoms, denies any weakness in the lower extremities and
denies any numbness or tingling.
(R. 61.) It was noted that the radiography showed
“normal alignment” and only mild degenerative
disk disease at ¶ 5-S1. (R. 61-62.) The physical
examination showed that Plaintiff's strength was 5/5 in
his lower extremities; he had an intact sensation from the
L3-S1 dermatomes bilaterally; his straight leg raise was
negative; and he was able to walk without difficulty. (R.
61.) The assessment and plan for Plaintiff was as follows:
We discussed with Mr. [A.] that at this point, there are no
changes noted on his imaging studies. Clinically, he looks to
be doing well. From our standpoint, he can advance his
activities as tolerated. We did discuss that he is likely
deconditioned with regards to his musculature; thus, we
recommend he do exercises as he previously had been taught at
physical therapy. He does have the list of these exercises
and is willing to go forth and start these up. We did discuss
with him the importance of practicing good back health with
regards to posture. From this standpoint, he can be doing
activities as tolerated and we can see him back in clinic on
an as needed basis.
(R. 62.) Both Dr. Brehemer and Dr. Santos agreed on this
plan. (Id.)
On
December 13, 2011, Dr. Santos reviewed an MRI from the same
date. (R. 645.) Dr. Santos's assessment was “Normal
alignment, no acute bony changes noted, mild degenerative
disc disease, L5-S1.” (Id.)
During
the hearing before the ALJ, Plaintiff admitted that he went
back to work after the second surgery as follows:
Q Okay. Right, and then after you had the second one, why
couldn't you have gone back to work?
A Well I actually did that's
when my neck started to hurt and we did some -- I believe we
did ...