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Terry D. v. Saul

United States District Court, D. Minnesota

September 13, 2019

Terry D., Plaintiff,
Andrew Saul, Commissioner of Social Security, [1] Defendant.



         This matter is before the Court on Plaintiff Terry D.'s (“Plaintiff”) Motion for Summary Judgment (Dkt. 12) (“Motion”) and Defendant Commissioner of Social Security Andrew Saul's (“Defendant”) Motion for Summary Judgment (Dkt. 14) (“Cross-Motion”). Plaintiff filed this case seeking judicial review of a final decision by Defendant denying her application for disability insurance benefits. She specifically challenges the Administrative Law Judge's (“ALJ”) evaluation of the treating opinions of Plaintiff's physician and the assessment of her residual functional capacity (“RFC”). For the reasons stated below, Plaintiff's Motion is denied, and Defendant's Cross-Motion is granted.

         I. BACKGROUND

         Plaintiff filed an application for Disability Insurance Benefits on June 29, 2015, alleging disability beginning January 1, 2009. (R. 387.)[2] Plaintiff's last date insured was December 31, 2013. (R. 409.) Plaintiff's application was denied initially (R. 249) and on reconsideration (R. 265). Plaintiff requested a hearing before an ALJ, which was held on October 19, 2017 before ALJ Micah Pharris. (R. 11.) The ALJ then held a second hearing on December 15, 2017 to take the testimony of Plaintiff's treating physician, Sean E. Anderson, M.D., whom Plaintiff had seen regularly for many years. (R. 91, 97-99.) The ALJ issued an unfavorable decision on January 23, 2018. (R. 29.) Following the five-step sequential evaluation process under 20 C.F.R. § 404.1520(a), the ALJ first determined that Plaintiff did not engage in substantial gainful activity between January 1, 2009 (the alleged onset date) and December 31, 2013 (her last day insured). (R. 13.)

         At step two, the ALJ determined that Plaintiff had the following severe impairments: chronic pelvic pain with no objective findings; mild right foot degenerative joint disease by x-ray; right knee bursitis; left wrist degenerative joint disease; remote history of degenerative disc disease with some chronic back pain. (R. 13.) The ALJ determined that Plaintiff's other physical impairments were not severe, including: bronchitis/sinusitis; headaches; several non-durationally severe sprains and strains; Grave's disease; plantar fasciitis; hypothyroid; fatty liver; hypertension; and several diagnoses of pain without etiology. (R. 14.) The ALJ noted that each of these impairments were not severe as it only lasted a short duration or had not been shown to more than minimally interfere with Plaintiff's ability to engage in basic work activities. (R. 14-17.)

         At the third step, the ALJ determined that 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. 17.) At step four, after reviewing the entire record, the ALJ concluded that Plaintiff had the following RFC:

to perform medium work[3] as defined in 20 CFR 404.1567(c) except the individual may frequently operate foot controls with the right foot. The individual may frequently handle and finger with the left upper extremity. The individual may frequently climb, stoop, kneel, crouch and crawl.

(R. 17.) Based on this RFC, the ALJ determined that Plaintiff was unable to perform any past relevant work as a hand packager, which the vocational expert (“VE”) testified exceed Plaintiff's RFC. (R. 28.)

         At step five, the ALJ asked the VE what other jobs a hypothetical person with Plaintiff's RFC, age, education, and work experience could perform in the national economy. (R. 29.) Given all the factors, the VE testified that such an individual could perform jobs such as warehouse worker, laundry worker, and hospital cleaner, which exist in significant numbers in the national economy. (R. 29.) Accordingly, the ALJ found Plaintiff not disabled. (R. 29.)

         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. (R. 1.) 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

         After an automobile accident in 1988 (R. 67), Plaintiff had MRIs in 1989 of her cervical and lumbar spine. (R. 474.) For the cervical spine, the MRI showed “[m]inimal degenerative central bulging of the disc annulae at ¶ 5-6, C6-7 and C7-T1 without cord impingement nor nerve root impingement.” (Id.) For the lumbar spine, the MRI concluded: “1. Degenerative dehydration of the T12-L1 disc in association with a Schmorl's node.[4] This is a common association. 2. Very slight dehydration of the lumbar discs throughout the lumbar spine and mild tropism and degenerative facet disease at ¶ 4 -5 and L5-S1. No. annular tear nor disc herniation is noted on this examination and there is no evidence of bony central or lateral spinal stenosis.” (R. 475.)

         On March 13, 2008, Plaintiff saw her treating physician Dr. Anderson after two months off work due to bronchitis. (R. 501.) At the visit, Plaintiff complained of continuing chronic pain and headaches, nausea, and abdominal pain, but did not want to continue going to a pain clinic she had been attending. (R. 501.) Dr. Anderson's notes reflected that he “told her 2 months even for bronchitis is plenty of time off of work.” (R. 501.) Plaintiff requested a lifting restriction of five pounds, but Dr. Anderson told her he was not sure why a lifting restriction would be needed after bronchitis. (R. 501.) After Plaintiff said she did not feel like she would be able to lift more than about five pounds, he put her on a ten-pound lifting restriction, but noted that the restriction “need[ed] to be re-evaluated relatively soon as that should not really be an issue.” (R. 501.) Dr. Anderson filled out a form for Plaintiff “extending her leave yet again.” (R. 501.)

         On April 4, 2008, Plaintiff saw Dr. Anderson for a routine physical. (R. 505.) Dr. Anderson noted that Plaintiff had seen three or four pain specialists who had not told Plaintiff a cause for her pain, but explained to her that the chronic pain clinic's job was to get her pain under more reasonable control rather than find the answer. (R. 505-06.) Plaintiff was noted to have normal station and gait. (R. 507.) Dr. Anderson thought Plaintiff was developing depression and started her on Zoloft, which she did not end up taking for long. (R. 505-07, 515.)

         Plaintiff continued to see Dr. Anderson regularly prior to the alleged onset date of January 1, 2009, and he continued to note chronic pain. (R. 508, 510, 513, 515, 607.) On May 23, 2008, he noted that Plaintiff had stopped attending the pain clinic. (R. 508-509; see R. 510 (“I sent her to 2 different chronic pain clinics, neither of which she will continue to go to. Transportation was a problem, time was a problem. This was mostly for chronic pelvic pain.”).) In a note dated November 7, 2008, Dr. Anderson stated that Plaintiff was having right thumb pain from tendinitis and noted that Plaintiff had a wrist splint. (R. 607.) Dr. Anderson told Plaintiff that she needed to wear the wrist splint more. (R. 607.) He also referred her to occupational therapy. (R. 607.)

         Plaintiff saw Dr. Anderson on January 8, 2009 with “a 1-week history of sinus pain, pressure, congestion, cough, chest pain, rhinorrhea, headaches.” (R. 616.) At the visit, Plaintiff had normal station and gait. (R. 618.) Plaintiff was given antibiotics and instructed to continue her other medications for ongoing issues. (R. 616, 618.)

         On April 8, 2009, Plaintiff saw Virginia L. Kakacek, M.D., for right foot pain. (R. 620.) Plaintiff reported that a week earlier, while walking her dog, “she felt her foot become unsteady” and “twisted it slightly.” (R. 620.) “She finished the walk, came home, and noticed it was uncomfortable. It has continued to hurt since then. It was a deep throbbing. She has noticed that it was a little bit swollen.” (R. 620.) Dr. Kakacek noted that Plaintiff “walks with a slight limp.” (R. 620, 622.) Plaintiff was determined to have a right foot strain. (R. 622.) She was offered a “CAM [controlled ankle motion] walker” with complete weight restriction but declined in favor of a surgical shoe. (R. 622.) Plaintiff was instructed to ice and elevate and was prescribed Vicodin. (R. 622.) An x-ray of the right foot revealed that “[t]he bones are intact, with no evidence of fracture.” (R. 586.)

         Plaintiff followed up with Dr. Anderson on April 20, 2009 about her right foot. (R. 624.) Plaintiff was still in pain, so Dr. Anderson gave her a refill of Vicodin for the pain. (R. 624.) Dr. Anderson noted that Plaintiff had not been resting her injured foot, but instead “has been walking 3 times a day since she does not have a job now and is trying to lose weight.” (R. 624.) He prescribed a CAM walker. (R. 626.) Aside from some kidney pain, Dr. Anderson stated that her other medical issues were stable. (R. 626.)

         Plaintiff saw Dr. Anderson on June 17, 2009 for “sinus pain and pressure, congestion, rhinorrhea, headaches, ongoing right foot pain, also some right ankle pain and some right hip pain.” (R. 628.) Dr. Anderson thought that the hip pain was caused by her walking differently due to her right foot pain. (R. 628.) Dr. Anderson gave her antibiotics for the cough and Vicodin for her pain. (R. 629.) Dr. Anderson referred Plaintiff to physical therapy for plantar fasciitis, muscular hip pain, and ankle pain. (R. 629.)

         On July 7, 2009, Plaintiff returned to Dr. Anderson after falling in her yard. (R. 630.) “She was out in her yard. She had turned awkwardly to one side and then her dog knocked her down. She has pain in her left ankle and left knee. Also had a bruise on her left hand, but that is not as painful. She notes plantar fasciitis of her right foot is almost completely resolved at this point.” (R. 630.) Plaintiff had an Aircast at home, and Dr. Anderson directed Plaintiff to wear the Aircast on her left ankle. (R. 631.) She preferred an Ace wrap at times, so Dr. Anderson gave her one. (R. 631.) Plaintiff was also given Vicodin for pain. (R. 631.) X-rays taken of her left knee and ankle were normal. (R. 587, 631.)

         Plaintiff next saw Dr. Anderson on August 25, 2009 with “worsening low back pain over the past week.” (R. 632.) Dr. Anderson noted that Plaintiff “does have chronic back pain since a car accident in 1988.” (R. 632.) Plaintiff thought “she was lifting something that was too heavy and had the onset of the low back pain, mostly in the midline.” (R. 632.) Dr. Anderson gave Plaintiff Vicodin for the pain and told her to continue to ice, which was helping. (R. 633.) He also noted that foot pain had been an “intermittent problem” for Plaintiff. (R. 632.) Plaintiff declined physical therapy. (R. 633.)

         Plaintiff saw Dr. Anderson on September 23, 2009 suspecting she may have a hernia. (R. 634.) Plaintiff felt something along the incision line of her previous hysterectomy. (R. 634.) “Pain can be in the midline or either to the right or left of that. Also has pain in the low back and right hip. Not clear if these pains are all related.” (R. 634.) At her request, Dr. Anderson renewed Plaintiff's Vicodin for pelvic pain and back and hip pain. (R. 634-35.) Dr. Anderson noted normal gait and station. (R. 635.) Dr. Anderson referred Plaintiff to urogynecology to reevaluate Plaintiff's pelvic pain and assess for hernia. (R. 635.) At the December 15, 2017 hearing, Dr. Anderson testified that looking just at the objective section of his treatment notes (i.e., ignoring subjective complaints), he would not consider Plaintiff to be limited to a sedentary level of work.[5](R. 204-05.)

         On October 16, 2009, Plaintiff saw Michael T. Valley, M.D., regarding her pelvic pain and possible hernia. (R. 636.) Plaintiff declined a pelvic examination, but permitted examination of her abdomen. (R. 637.) Dr. Valley was not able find evidence of a hernia in his examination. (R. 637.) Dr. Valley noted that he would have encouraged physical therapy to strengthen the pelvic floor and work on the low back pain, but Plaintiff stated physical therapy would not be covered by her insurance. (R. 637.) She also stated she was not able to go to physical therapy for her foot pain due to lack of insurance coverage. (R. 637.) Dr. Valley ordered a CT scan of the abdomen and pelvis. (R. 637.) The CT scan found “[n]o CT evidence for ventral or inguinal hernia.” (R. 591.)

         On December 17, 2009, Plaintiff saw Dr. Anderson for right hip pain and a head cold. (R. 640.) Plaintiff said that her hip got worse with standing or walking. (R. 640.) Since it had been several years since the last hip x-ray, Dr. Anderson ordered an x-ray of the hip. (R. 640.) The x-ray found the “[p]elvis and right hip within normal limits.” (R. 595.) Dr. Anderson noted: “She is planning on starting to use a cane.” (R. 640.) Plaintiff testified that the cane was her mother's. (R. 71.) Dr. Anderson renewed Plaintiff's Vicodin and prescribed antibiotics. (R. 641.) Dr. Anderson testified at the hearing that based on the objective section of his notes alone, he would not consider Plaintiff limited to sedentary work. (R. 199-200.)

         On January 26, 2010, Plaintiff again saw Dr. Anderson with a cough. (R. 642.) Dr. Anderson again prescribed antibiotics and, at Plaintiff's request, re-prescribed Vicodin for “the sinus pain and her other aches and pains.” (R. 642-643.) Plaintiff declined a chest x-ray but said she would return for one if her symptoms persisted. (R. 643.)

         Plaintiff returned on March 4, 2010 to Dr. Anderson with “another bout of bronchitis.” (R. 644.) Plaintiff requested more Vicodin “for chronic hip pain and also for right toe pain.” (R. 644.) Plaintiff also “dropped a case of pop on her foot” but would not allow Dr. Anderson to examine the foot. (R. 644.) In the objective portion of his notes, Dr. Anderson noted that plaintiff was walking with a cane. (R. 645.) Dr. Anderson prescribed antibiotics and refilled her Vicodin. (R. 645.)

         Plaintiff had her physical examination with Dr. Anderson on March 31, 2010. (R. 646.) Plaintiff “continue[d] to have numerous chronic pains.” (R. 646.) Plaintiff noted having neck pain, hip pain (right more than left), and pelvic pain. (R. 646.) Dr. Anderson noted normal station and gait and that a recent x-ray of the hips was normal. (R. 646-647.) Plaintiff requested an ultrasound of her hips, which Dr. Anderson explained he did not do. She also requested an ultrasound of her abdomen and pelvis region, which showed “[n]o abnormal masses or definite free fluid collections in the pelvis.” (R. 599, 646.) Dr. Anderson renewed Plaintiff's Vicodin “but told her that we will not use this long-term.” (R. 646.)

         On May 25, 2010, Plaintiff saw Dr. Anderson with a 4-day history of productive cough. (R. 648.) Plaintiff told Dr. Anderson that her low back pain had “flared up recently.” (R. 648.) “They had a tree that was down in their yard and had to clean that up. She did have some Vicodin left over, and those have been helping.” (R. 648.) Dr. Anderson prescribed an extended-course antibiotic and renewed Plaintiff's Vicodin. (R. 649.)

         Plaintiff's next bout of bronchitis occurred on September 1, 2010. (R. 650.) In addition, she described “pain on the top of her right foot.” (R. 650.) Dr. Anderson continued:

She twisted that on July 4 in her driveway. Pain did not start right away; it sounds like a strain. She has continued to try and be active; walks daily. Just started school and has to do quite a bit walking for that. Discussed this will slow down her healing. She does not do well with either anti-inflammatories or Tylenol. Does do okay with Vicodin. I gave her a new prescription today.

(R. 650.) Dr. Anderson also prescribed two courses of antibiotics, “which is what it usually takes to resolve her bronchitis.” (R. 651.) Dr. Anderson stated in the objective portion of his notes that she “walks with a slight limp and her cane.” (R. 651.)

         On October 20, 2010, Plaintiff saw Dr. Anderson “after reinjuring her right foot.” (R. 652.) “She twisted it the wrong way when walking her dog. Still had not recovered from the previous injury. She has been wearing a cam walker but cannot wear that when she is out of the house and has to do a lot of walking to and from school at work. Vicodin works well for the pain, requests more of that.” (R. 652.) Dr. Anderson believed that Plaintiff “likely ha[d] another foot sprain and ankle sprain.” (R. 653.) He gave Plaintiff an Aircast, renewed her Vicodin, and ordered an x-ray to rule out any bony abnormalities. (R. 653.) The x-ray found “[n]o acute bone or joint abnormality” but “some scattered degenerative changes to the foot [we]re present.” (R. 600.)

         On December 3, 2010, Plaintiff had another productive cough and noted continued right ankle pain. (R. 654.) Dr. Anderson noted that Plaintiff reinjured the ankle the week prior. (R. 654.) “She does not feel that the Aircast was enough support, so now she is wearing a boot.” (R. 654.) Dr. Anderson renewed her Vicodin prescription for her ankle pain at her request. (R. 655.) “Offered to refer her to Orthopedics or for physical therapy and she would like to [sic] the former, she will check with insurance first.” (R. 655.) He recommended that she wear the boot, “although she does not wear [the boot] when she goes to school and she does a fair amount of walking there.” (R. 655.) Dr. Anderson “recommended she wear the Aircast at that time.” (R. 655.) He believed that physical therapy would be appropriate later if Plaintiff was willing. (R. 655.)

         Plaintiff's next visit with Dr. Anderson was on January 18, 2011 for productive cough. (R. 656.) Dr. Anderson noted normal gait and station. (R. 657.) He gave Plaintiff a “limited supply of some Vicodin for the headaches associated with sinusitis. She understands that this is short-term.” (R. 657.)

         On February 16, 2011, Plaintiff saw Dr. Anderson with right knee pain and swelling after a fall two days earlier. (R. 658.) “She was helping her husband take the fish house off the lake. She slipped and fell directly onto the right knee. Has been using Vicodin for the pain, and that is helping. She has been using some ice for the swelling. Also has lesser pain on the left knee.” (R. 658.) Dr. Anderson noted that Plaintiff did not permit much examination of the right knee. (R. 659.) He noted a slight limp in Plaintiff's walk. (R. 659.) He also gave Plaintiff a new prescription for Vicodin. (R. 659.) Dr. Anderson testified at the hearing that because of the slight limp, Plaintiff was limited to sedentary work based on the objective evidence. (R. 163-64.)

         Plaintiff next went to Dr. Anderson on March 24, 2011 for another fall, which injured her left wrist. (R. 660.) “She was going up the stairs, stumbled and fell on her outstretched arm. She is worried that she has a fracture. Pain has not been getting much better. Also has a little pain up the forearm and into the elbow. Also since scheduling the appointment she has developed a cough.” (R. 660.) Dr. Anderson prescribed antibiotics for the cough. (R. 661.) Dr. Anderson noted normal station and gait. (R. 661.) He noted Plaintiff “holds the left wrist relatively stiff and straight.” (R. 661.) “There is some minimal tenderness over the dorsum. Strength and range of motion limited only by discomfort.” (R. 661.) Dr. Anderson ordered an x-ray for the left wrist, which found no acute fracture or other abnormality. (R. 601, 661.) Dr. Anderson placed the left wrist in a splint, which Plaintiff could “wear [] as needed for comfort.” (R. 661.)

         Plaintiff had her next physical on April 7, 2011 with Dr. Anderson. (R. 662.) Dr. Anderson noted normal gait and station and did not reference Plaintiff's pain. (R. 662-63.)

         On May 25, 2011, Plaintiff returned with “numerous issues.” (R. 664.) Plaintiff's left wrist was continuing to give her pain. (R. 664.) “She reinjured it recently, just twisted something. I again recommended hand therapy. She states she cannot afford it right now. She has a wrist splint, which I recommended she continue to use. She will continue her Vicodin as needed.” (R. 664.) She also complained of right knee pain, for which Dr. Anderson ordered an x-ray. (R. 664.) Plaintiff complained of pelvic pain, and Dr. Anderson noted that she “[h]as been evaluated by several specialists, and no one can really come up with a specific diagnosis or treatment plan for that.” (R. 664.) Plaintiff had normal gait and station. (R. 665.) Dr. Anderson noted that he “[w]ould like to get her off [Vicodin] as soon as possible, but with the various different pain complaints, I do not think now is the time. Certainly will not continue to use this long- term for the pelvic pain, which is chronic.” (R. 665.) Dr. Anderson testified at the hearing that in his opinion, Plaintiff was limited to sedentary work at this visit. (R. 167.) Plaintiff's right knee x-ray found “[n]o bone or joint abnormality.” (R. 604.)

         On June 29, 2011, Plaintiff saw Dr. Anderson after another fall. (R. 666.) Dr. Anderson stated that Plaintiff “has had a longstanding problem with gait instability, balance issues, and falls.” (R. 666.) Plaintiff “hit her head and neck. Saw stars but did not lose consciousness. Does not have any post concussive symptoms.” (R. 666.) Plaintiff continued to have “numerous musculoskeletal pain issues, many of which she had even before the fall.” (R. 666.) These included low back pain, posterior neck pain and right knee pain. (R. 666.) Dr. Anderson renewed Plaintiff's Vicodin as she was almost out and she had requested more. (R. 666.) Dr. Anderson noted that when he “started the musculoskeletal exam, she said she was having too much pain for me to examine and refused the rest of the exam.” (R. 667.) Dr. Anderson “[r]eferred [Plaintiff] to Physical ...

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