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Barbara M. v. Saul

United States District Court, D. Minnesota

September 26, 2019

Barbara M., Plaintiff,
Andrew Saul, Commissioner of Social Security, [1] Defendant.

          Fay E. Fishman, Peterson & Fishman, (for Plaintiff).

          Michael A. Moss, Special Assistant United States Attorney, Social Security Administration, (for Defendant).


          Tony N. Leung, United States Magistrate Judge.


         Plaintiff Barbara M. brings the present case, contesting Defendant Commissioner of Social Security’s denial of her application for disability insurance benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. § 401 et seq. The parties have consented to a final judgment from the undersigned United States Magistrate Judge in accordance with 28 U.S.C. § 636(c), Fed.R.Civ.P. 73, and D. Minn. LR 72.1(c).

         This matter is before the Court on the parties’ cross-motions for summary judgment. (ECF Nos. 9, 11.) For the reasons set forth below, Plaintiff’s motion is granted in part and denied in part; the Commissioner’s motion is granted in part and denied in part; and this matter is remanded to the Social Security Administration for further proceedings consistent with this opinion.


         Plaintiff applied for DIB in October 2014, asserting that she is disabled due to “chronic back pain, left side leg and foot pain, stimulator put in, nerve pain, complex regional pain disorder, and s/p work injury.”[2] (Tr. 87; see Tr. 15, 98, 100, 112.) Plaintiff’s DIB application was denied initially and again upon reconsideration. (Tr. 15, 96, 98, 110, 112.) Plaintiff appealed the reconsideration of her DIB determination by requesting a hearing before an administrative law judge (“ALJ”). (Tr. 15; see Tr. 124-38.)

         The ALJ held a hearing in May 2017. (Tr. 15, 37-86.) After receiving an unfavorable decision from the ALJ, Plaintiff requested review from the Appeals Council, which denied her request for review. (Tr. 1-4, 12-36.) Plaintiff then filed the instant action, challenging the ALJ’s decision. (Compl., ECF No. 1.) The parties have filed cross motions for summary judgment. (ECF Nos. 9, 11.) This matter is now fully briefed and ready for a determination on the papers.


         Plaintiff has a history of back pain stemming from a work injury in 2010 when she was moving and unloading a pallet of frozen food while working in the bakery of a grocery store. (Tr. 41-42, 520, 546, 1996-97.) Plaintiff has had several surgeries to treat her back pain, including a partial laminectomy and discectomy in 2010; “extensive decompression of both the L5 and S1 nerve roots” and “an anterior L5-S1 fusion . . . as well as a revision left L5 hemilaminectomy, left L5-S1 medial facetectomy, and left L5 foraminotomy with a posterior spinal fusion” in 2011; hardware removal and fusion in 2013; and the implantation and subsequent “revision” of a spinal cord stimulator in 2014. (See Tr. 1998-2002; see, e.g., 525-26, 542, 553-54, 567-76, 594-95, 912-13, 1082-83.) Plaintiff continued experiencing varying degrees of back pain and radiating pain with numbness into her legs and feet. (See, e.g., Tr. 540, 542, 1672, 1721, 1746, 1768, 1776, 1782, 1790, 1805, 1879, 1997-2004; see also, e.g., Tr. 1645, 1663-64.)

         Plaintiff began treatment at the Twin Cities Pain Clinic with Andrew J. Will, MD, in November 2012 for persistent low-back pain, radiating into her left leg and foot. (Tr. 601.) Plaintiff received treatment at the Twin Cities Pain Clinic appxoimately once per month in 2013 and twice per month in 2014. (See, e.g., 608, 611, 614, 617, 621, 624, 627, 630, 633, 636, 639, 1023, 1027 (2013); 1036, 1040, 1043, 1046, 1050, 1058, 1064, 1067, 1071, 1075, 1079, 1093, 1097, 1101, 1105, 1107, 1111, 1145, 1147, 1152 (2014); see also Tr. 1125, 1129, 1133, 1137, 1139, 1143.) Plaintiff’s functioning improved somewhat with medication. (See, e.g., Tr. 606, 610, 613, 616, 626, 629, 632, 635, 638, 1022, 1029, 1042, 1060, 1065, 1069, 1081, 1099, 1103.)

         Plaintiff continued to experience radiating low-back pain. In December 2013, Dr. Will inserted a spinal cord stimulator on a trial basis. (Tr. 1030; see Tr. 1032, 1034.) Plaintiff “report[ed] getting 50% pain relief” and the spinal cord stimulator “increased her ability to perform her normal activities of daily living.” (Tr. 1035; see also Tr. 1036, 1038.)

         In April 2014, Dr. Will implanted a spinal cord stimulator. (Tr. 1047; see Tr. 1048, 1054, 1056, 1062.) While Plaintiff received some initial pain relief after the spinal cord stimulator was implanted, it was subsequently determined that the leads of the spinal cord stimulator had moved and needed to be adjusted. (Compare Tr. 1052, 1054 with Tr. 1065, 1069.)

         In September 2014, Dr. Will revised the placement of the leads. (Tr. 1082.) Following the procedure, Plaintiff was subsequently admitted to the hospital for approximately nine days due to uncontrolled pain. (Tr. 1084-92; see also Tr. 1118-24, 921-35.) Plaintiff was subsequently discharged to a nursing facility where she remained until the end of October. (Tr. 1092, 1107; see Tr. 937-1019.)

         In October 2014, Dr. Will, “in collaboration with Cara A. Herrmann, CNP, ” expressed concern that Plaintiff “may be developing [Complex Regional Pain Syndrome (‘CRPS’)].”[3] (Tr. 1095; accord Tr. 1127.) Two months later, Herrmann assessed Plaintiff with “postlaminectomy syndrome of [the] lumbar region” and “[r]eflex sympathetic dystrophy of the lower limb.”[4] (Tr. 1150.) Towards the end of November 2014 and into January 2015, Plaintiff had a series of nerve blocks, which helped with her pain. (Tr. 1105, 1107, 1109, 1111, 1145, 1147, 1152, 1154, 1156, 1159, 1161; see also Tr. 1137, 1143.) Plaintiff also reported some relief from her spinal cord stimulator at night, which helped her sleep. (See, e.g., Tr. 1147, 1156, 1159.)

         In March 2015, Plaintiff began treatment with Todd M. Hess, MD, for her continuing back and leg pain. (Tr. 1206-07.) Among other things, Dr. Hess assessed Plaintiff with “reflex sympathetic dystrophy/CRPS of the left lower extremity.” (Tr. 1213; see also, e.g., Tr. 1221, 1379, 1381.) Plaintiff saw Dr. Hess on average twice per month for injection therapy, namely, lumbar sympathetic and stellate ganglion blocks, between April 2015 and October 2016. (Tr. 1226, 1232, 1260, 1289, 1299, 1326, 1379, 1422, 1504, 1515, 1540, 1553, 1562, 1576, 1608, 1630, 1644, 1663, 1671, 1677, 1708, 1715, 1721, 1728, 1735, 1745, 1752, 1759, 1767, 1775, 1781, 1789, 1797, 1804, 1814; see also Tr. 411 (“[Plaintiff] is currently seeing Dr. Hess every two weeks for repeat injection therapy.”).) Plaintiff received injection therapy approximately once per month between November 2016 and March 2017. (Tr. 1830, 1860, 1869, 1879, 1886.)

         In or around the beginning of July 2015, Plaintiff was in a car accident where “she fell asleep for a few seconds while driving and rear[-]ended a truck and trailer.” (Tr. 2003; see Tr. 1319, 1327.) Plaintiff fractured her left arm when it hit the steering wheel. (Tr. 2003; see Tr. 1327.) Plaintiff reported that “her medications were making her very sedated.” (Tr. 1327.) Following the accident, Plaintiff “developed signs and symptoms of reflex sympathetic dystrophy” in her left arm and continued to have pain. (Tr. 2004; see, e.g., Tr. 1645, 1663-64, 1672, 1678, 1716, 1746, 1768, 1776, 1790; see also Tr. 1729, 1869.)

         In October 2015, Dr. Hess noted that CRPS symptoms had spread into both of Plaintiff’s lower extremities and her left upper extremity, and continued thereafter. (See Tr. 1515-16, 1540-42; see, e.g., Tr. 1553, 1555, 1562, 1564, 1576, 1578, 1608, 1610, 1630, 1632, 1644, 1646, 1663, 1665, 1671, 1673, 1677, 1679, 1700, 1708, 1710, 1715, 1717, 1721, 1723, 1728-29, 1735, 1737, 1745, 1747, 1752, 1754, 1759, 1761, 1767, 1769, 1775, 1777, 1781, 1783, 1789, 1791, 1797, 1799, 1804, 1806, 1814-15, 1830-31, 1860, 1862, 1869, 1870, 1879-80, 1886, 1887.)

         In early March 2016, Dr. Hess noted that “it remains [his] opinion that [Plaintiff] is unable to work from a medical standpoint and qualifies for disability.” (Tr. 1709; see also, e.g., Tr. 1609, 1699, 1716.) Dr. Hess further noted that “[w]e may need a functional capacity evaluation to properly delineate her current capabilities.” (Tr. 1709.) Two weeks later, Dr. Hess ordered a functional capacity evaluation. (Tr. 1716.)

         In May 2016, Plaintiff underwent a functional capacity evaluation. (Tr. 1683-98; see Tr. 1743-47.) In relevant part, the occupational therapist concluded that, in an 8-hour workday, Plaintiff could sit for 6 hours, at 30 to 45-minute intervals; stand for 1 to 2 hours, at 10-15 minute intervals; and walk for 2 hours, for “[s]hort distances and [at a] slower pace.” (Tr. 1683.) In the comments section, the occupational therapist stated that Plaintiff should be “[a]llow[ed] . . . to self[-]pace with activities.” (Tr. 1683.) In the test results and interpretation portion of the functional capacity evaluation, the occupational therapist recommended that Plaintiff “have the ability to self[-]pace with activities requiring upper extremity coordination.” (Tr. 1691.)

         In February 2017, Plaintiff underwent another procedure to have the “wires” of the spinal cord stimulator placed “deeper.” (Tr. 1875.)

         IV. ANALYSIS

         This Court reviews whether the ALJ’s decision is supported by substantial evidence in the record as a whole. Boettcher v. Astrue, 652 F.3d 860, 863 (8th Cir. 2011). “Substantial evidence means less than a preponderance but enough that a reasonable person would find it adequate to support the decision.” Id. This standard requires the Court to “consider both evidence that detracts from the [ALJ’s] decision and evidence that supports it.” Id. The ALJ’s decision “will not [be] reverse[d] simply because some evidence supports a conclusion other than that reached by the ALJ.” Perks v. Astrue, 687 F.3d 1086, 1091 (8th Cir. 2012). “The court must affirm the [ALJ’s] decision if it is supported by substantial evidence on the record as a whole.” Chaney v. Colvin, 812 F.3d 672, 676 (8th Cir. 2016) (quotation omitted). Thus, “[i]f, after reviewing the record, the court finds it is possible to draw two inconsistent positions from the evidence and one of those positions represents the ALJ’s findings, the court must affirm the ALJ’s decision.” Perks, 687 F.3d at 1091 (quotation omitted); accord Chaney, 812 F.3d at 676.

         Disability benefits are available to individuals who are determined to be under a disability. 42 U.S.C. § 423(a)(1); accord 20 C.F.R. § 404.315 (2014).[5] An individual is considered to be disabled if she is unable “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.” 42 U.S.C. § 423(d)(1)(A); see 20 C.F.R. § 404.1505(a). This standard is met when a severe physical or mental impairment, or impairments, renders the individual unable to do her previous work or “any other kind of substantial gainful work which exists in the national economy” when taking into account her age, education, and work experience. 42 U.S.C. § 423(d)(2)(A); see 20 C.F.R. § 404.1505(a).

         Disability is determined according to a five-step, sequential evaluation process. 20 C.F.R. § 404.1520(a)(4).

To determine disability, the ALJ follows the familiar five-step process, considering whether: (1) the claimant was employed; (2) she was severely impaired; (3) her impairment was, or was comparable to, a listed impairment; (4) she could perform past relevant work; and if not, (5) whether she could perform any other kind of work.

Halverson v. Astrue, 600 F.3d 922, 929 (8th Cir. 2010). In general, the burden of proving the existence of disability lies with the claimant. 20 C.F.R. § 404.1512(a).

         A. Residual Functional Capacity

         Plaintiff’s assertions of error primarily concern the ALJ’s residual-functional-capacity determination at step four. See Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005) (“The fourth step in this analysis requires the ALJ to determine a claimant’s [residual functional capacity].” (quotation omitted)).

         A claimant’s “residual functional capacity is the most [she] can do despite [her] limitations.” 20 C.F.R. § 404.1545(a)(1); see McCoy v. Astrue, 648 F.3d 605, 614 (8th Cir. 2011) (“A claimant’s [residual functional capacity] represents the most he can do despite the combined effects of all of his credible limitations and must be based on all credible evidence.”). “Because a claimant’s [residual functional capacity] is a medical question, an ALJ’s assessment of it must be supported by some medical evidence of the claimant’s ability to function in the workplace.” Perks, 687 F.3d at 1092 (quotation omitted). “Medical records, physician observations, and the claimant’s subjective statements about h[er] capabilities may be used to support the [residual functional capacity].” Id. “Even though the [residual-functional-capacity] assessment draws from medical sources for support, it is ultimately an administrative determination reserved to the Commissioner.” Id. (quotation omitted); see 20 C.F.R. § 404.1546(c).

         In determining her residual functional capacity, Plaintiff argues that the ALJ erred by not including limitations for “self-pacing”[6] as well as concentration and focus, and not giving proper weight to the opinions of Drs. Hess and Will.

         B. Self-Pacing

         1. Dr. Frazin’s Testimony

         At the hearing before the ALJ, Jared A. Frazin, MD, testified as the medical expert. (Tr. 65-77.) The ALJ asked Dr. Frazin whether he “overall concur[red] with what was set forth in the functional capacity evaluation.” (Tr. 70.) Dr. Frazin responded, “Yeah. I think that would be reasonable.” (Tr. 70.) Dr. Frazin went on, however, to identify additional limitations with respect to Plaintiff’s upper extremities and the working environment. (See Tr. 70-71, 73-76.) Dr. Frazin opined there were no limits on Plaintiff’s right hand. (Tr. 75.) For Plaintiff’s left[7] hand, Dr. Frazin opined occasional overhead reaching and frequent reaching in all other directions; frequent handling; occasional fine fingering; and frequent but not constant feeling. (Tr. 75-76.) Dr. Frazin did not specifically address self-pacing in his testimony.[8]

         2. ALJ’s Decision

         In relevant part, the ALJ determined that Plaintiff had the residual functional capacity to perform sedentary work with additional limitations of “sitting up to 6 of 8 hours but 45 minutes at a time, standing up to 1-2 hours total in an 8 hour day but 10-15 minutes at a time, [and] walking at a slow pace.” (Tr. 21.) As for Plaintiff’s upper extremities, the ALJ additionally limited Plaintiff to “occasional fine fingering with the left hand[;] frequent feeling, but not constant on the left[;] frequent gross handling with the left hand, but no limitations with the right, as well as occasional overhead reaching, [and] frequent reaching in all other directions.” (Tr. 21.)

         When determining Plaintiff’s residual functional capacity, the ALJ gave “significant weight overall” to the functional capacity evaluation, but specifically found that “the self-paced reports are not supported and thus not given weight.” (Tr. 24.) The ALJ also gave “great weight” to the testimony of the Dr. Frazin. (Tr. 24.) Specifically addressing self-pacing, the ALJ stated:

[P]ost-hearing, the [Plaintiff’s] representative sent in a brief arguing that the [functional-capacity-evaluation] elements of being allowed to self-pace with sitting, standing, and walking activity and self-pace with activities requiring upper extremity coordination should be included. The representative argues that Dr. Frazin accepted the [functional-capacity-evaluation] results including these self-pace elements. However, Dr. Frazin did not state that he accepted those elements of the [functional capacity evaluation] and articulated in his testimony and his opined residual functional capacity the elements he did accept. Further, the exams, objective findings, and her activities do not support the self-pace aspect of the [functional capacity evaluation]. Thus, the self-paced aspect of the [functional capacity evaluation] is given little weight.

(Tr. 24-25.)

         3. ...

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