United States District Court, D. North Dakota
ORDER RE CROSS-MOTIONS FOR SUMMARY JUDGMENT
Charles S. Miller, Jr., Magistrate Judge
Randy Wilkinson seeks judicial review of the Social Security
Commissioner's denial of his application for Disability
Insurance Benefits (“DIB”) under Title II of the
Social Security Act, 42 U.S.C. § 401- 433, et.
seq. Before the court are competing motions for summary
judgment filed by Wilkinson and Nancy A. Berryhill, Acting
Commissioner of Social Security Administration
(“Commissioner”). (Doc. Nos. 13,
filed an application for DIB on June 23, 2015, alleging a
disability onset date of March 4, 2014. (Tr. 173-179).
Wilkinson later amended the alleged onset date to March 5,
2015. (Tr. 35). An Administrative Law Judge
(“ALJ”) held a hearing on Wilkinson's
application on December 7, 2016, at which counsel represented
Wilkinson. (Tr. 30-72). On February 9, 2017, the ALJ issued a
decision concluding Wilkinson was not disabled so as to be
entitled to DIB. (Tr. 11-22). Wilkinson appealed that
determination to the Appeals Council on April 6, 2017. (Tr.
325-330). The Appeals Council, without analysis, denied the
appeal on May 16, 2017, concluding no basis existed so as to
warrant changing the ALJ's determination. (Tr. 1-4).
Wilkinson filed his complaint initiating this action on July
19, 2017. (Doc. No. 4).
his administrative hearing, Wilkinson was 50 years old, stood
5-11 feet tall, and weighed approximately 320 pounds. (Tr.
818). Wilkinson has a GED and completed two years of
post-secondary education. (Tr. 39). For the majority of his
adult life, Wilkinson worked as a mechanic at various
employers in southwestern North Dakota. (Tr. 39-44).
Medical and Other Records
suffers from a number of ailments, either in isolation or in
combination, that he claims renders him disabled within the
meaning of the Social Security Act. The following broadly and
separately outlines the roughly 700 pages of medical records
appearing in the record with respect to the principal matters
at issue in this case. (Tr. 331-994).
Lower back and leg
suffers from degenerative disc disease in his back, with
accompanying lower extremity radicular pain. (Tr. 969-970).
Wilkinson began experiencing low back and right-sided
sciatica at least by mid-2013. At that time, medical imaging
suggested an L4-L5 right-sided small disk herniation. He was
seen on a number of occasions in 2013 in an attempt treat the
pain with medication and injections. According to the
reports, the injections provided only temporary relief.
During this period, Wilkinson continued to work for
Peterbuilt. He reported having received a promotion that
allowed him to do more counter work and less physical work.
the attempts to address the back and leg pain with injections
and medication were not successful and following additional
MRI imaging showing evidence of L4-L5 right-sided lateral
recessed stenosis, Wilkinson elected to undergo a
decompression surgery on March 13, 2014, performed by Dr.
Belanger. (Tr. 380, 675- 677). Medical notes taken at follow
up appointments suggested the surgery provided good
decompression of the L4-L5 area. On May 9, 2014, Wilkinson
reported that he had obtained significant relief, was ready
to return to work, and inquired about restrictions. At that
time, it was suggested he continue to lift not more than 20
pounds and avoid repetitive twisting and turning until he was
twelve weeks post op, at which time he could resume his
normal activities. He was cleared to return to work as of May
12 subject to these temporary restrictions. (Tr. 674-75).
thereafter, however, Wilkinson reported that the pain in his
back returned following a pillow fight with his son and that
he twice went to the emergency room for relief. At that
point, Dr. Belanger and his assistants urged he continue with
conservative treatment options and attend physical therapy.
did return to work at some point but continued to present
with complaints of pain. In September 2014, there is a clinic
note in which Wilkinson reports fluctuating pain in his lower
back and right buttocks. He stated the symptoms were
aggravated by changing positions and daily activities. He
also stated that he had to get help the day prior at work in
getting up from his “creeper” because of intense
burning. (Tr. 874). Wilkinson sought a second opinion for the
pain he was still experiencing and was referred to Dr. Watt.
October 14, 2014, Wilkinson had a neurosurgical consult with
Dr. Watt. According to the notes of the physician assistant,
Wilkinson reported that he had obtained some relief for a
couple of weeks after the surgery in March 2014, but that the
pain returned along with numbness in his right buttocks,
rectal area, and the back of his right leg. Wilkinson
reported the pain was intermittent and that there had been a
few instances of sharp pain in which he lost a little bit of
stool in his underwear. Wilkinson stated his symptoms were
aggravated by lying on his “creeper” at work or
doing any activity on his back and that he had missed one day
of work. He believed his condition overall was worsening and
that Dr. Belanger had advised there was nothing more that he
could do. Following a physical examination that revealed
little in the way of objective information, the decision was
made to obtain additional studies, including a nerve
conduction study that was performed that same day and
revealed remote right LS-Sl radiculopathy. (Tr. 654-659,
an additional telephone contact on December 10, 2014, in
which Wilkinson continued to complain about pain with
twisting and turning at work, it was decided that new MRI
imagery should be obtained. (Tr. 652). The new MRI
administered in February of 2015 showed moderate to severe
spinal canal stenosis at the L4-S1 levels. (Tr. 859-861,
869-872). On March 6, 2015, Wilkinson had a followup and the
treatment notes reflect that Dr. Watt could not clearly
identify the reason for the continued pain but concluded it
may be due to epidural lipomatosis as well as possibly trauma
from the root retraction during his earlier discectomy. The
only thing that Dr. Watt offered was that he could increase
the size of the decompression, but with no guarantee this
would provide any relief. (Tr. 449-650).
the record is not entirely clear, it appears Wilkinson
continued to work as his medical condition permitted until
March 15, 2015, when he quit because he re-injured his left
hand. After another surgical procedure on his left hand in
April 2015, followed by a second surgical procedure in July
2015 on his back that ultimately did not provide lasting
relief, Wilkinson never returned to work, concluding he was
not able to do so given his back and hand/arm impairments.
(Tr. 39-41, 45).
5, 2015, Wilkinson called Dr. Watts' office to report a
“worsening of left leg pain that radiates from his low
back down [through] his lateral thigh to the knee” and
that the pain was “so ba d he [c oul dn't]
sleep.” (Tr . 648). This was followed by a decision to
get a new updated MRI study, which was conducted on June 30,
2015. The study showed a loss of intervertebral disc space
height and disc displacement at ¶ 1-L2; moderate left
greater than right foraminal narrowing effacing the exiting
L2 nerve root at ¶ 2-L3; broad based disc protrusion and
moderate biformainal narrowing effacing the exiting L3 nerve
root in combination with facet arthropathy at ¶ 3-L4;
and mixed spondylotic disc displacement eccentric to the left
and moderate foraminal narrowing effacing the exiting L4
nerve root in combination with facet arthropathy at ¶
4-L5. Dr. Watt, who saw Wilkinson the same day as the new
study, noted “progressive worsening of his pain despite
attempts at conservative care” and that the pain
“worsens with standing.” Dr. Watt also noted that
Wilkinson had gained weight from when he was in last and that
he needed to lose weight and improve his overall health. The
decision was made to put him on the schedule for surgery.
22, 2015, Dr. Watt performed a decompression “by way of
laminectomy and foraminotomy, ” at the L2, L3, L4, and
L5 nerve roots. (Tr. 553-554, 630-631). A month after the
surgery Wilkinson was seen for a followup. Wilkinson reported
reported that his low back was sore, but that he was pleased
with the surgery. He stated he was not sure he could return
to heavy work in the oil fields, however, and he was
continued on narcotic pain medications. (Tr, 635-636).
September 23, 2015, during a call for a refill of his
narcotic pain medication, Wilkinson reported that he
continued to have pain in his tailbone but his radicular pain
at that point was not present and that overall his back was
feeling pretty good. The decision was made to continue him on
the narcotic pain medication but start to wean him off. (Tr.
subsequent call in October, however, Wilkinson reported that
his pain had returned and his back was “really messed
up.” He was referred for long-term pain management.
(Tr. 632). In the interim, he was continued on his narcotic
pain medication. (Tr. 632, 914-917).
started with Sandford Health in December 2015 for pain
management. During his first visit on December 3, 2015,
Wilkinson addressed his low back pain and left wrist pain. He
stated that his low back pain is “always
present” and made worse with longer periods of
walking, sitting, and standing. (Tr. 951). From this first
visit in December 2015 through November 2016, just before the
hearing before the ALJ in December, Wilkinson was seen at
least five different times for his pain management. During
this period, he also had an additional procedure on his left
hand. Although there were concerns about Wilkinson remaining
on narcotic pain medication long term, he continued to be
treated with narcotic pain medication for his back and left
wrist pain. And, while Wilkinson was satisfied with the pain
regime he was on up to October 2016, his physical activity
remained limited and the reports reflect that the pain would
increase during longer periods of walking, sitting, or
standing. (Tr. 951-985). Also, when he was seen on August 19,
2016, the treating physician for his pain management, Dr.
Ryan Zimmermann, diagnosed his condition as being one of
“failed back syndrome.” (Tr. 969).
October 2016, Wilkinson reported to his Sandford pain
management team that his level of pain had increased. A
change was made in his narcotic pain medication from
hydrocodone/apap 10/325 to oxycodone/apap 10/325 mg and
Wilkinson was re-started on physical therapy. At the next
visit in November 2016, Wilkinson reported that his current
pain regime was helping and he was continued on
“chronic opioid maintenance therapy.” Wilkinson
also reported that physical therapy helped a little in that
he felt good on the day of the PT but that the pain would
return by the next day. (Tr. 981-985).
treating professionals have expressed concern about his
obesity and the fact that it might be exacerbating or least
not helping his back pain. During the time period from 2013
through 2016 when Wilkinson's physical activity became
more and more restricted with his low back and arms problems,
he put on more than 100 pounds. The problem of
Wilkinson's obesity may be a complex one, including lack
of physical activity, diet, periods of depressed feelings,
and hypothyroidism. (Tr. 376, 752, 886, 956, 969).
October 2, 2014 presentment, a treating physician diagnosed
Wilkinson with a ruptured ligament in his left wrist. (Tr.
586-587). Wilkinson underwent a radioscapholunate arthodesis
for radiolunate arthritis on November 7, 2014. (Tr. 395-396).
This provided some relief for his radiocarpal joint, but
Wilkinson had developed other significant symptoms over the
distal radial ulnar joint, which was also arthritic. (Tr.
397). Wilkinson underwent a radioscapholunate fusion on April
15, 2015. (Tr. 397-398). Wilkinson presented for a number of
follow-up appointments in the following months. (Tr.
616-623). During a September 3, 2015 appointment, Wilkinson
reported he was doing well and not having any pain. He
reported he was adjusting to his new limitations and was
using his left hand “for most activities.” (Tr.
623). The receiving nurse advised Wilkinson he should not be
lifting more than twenty pounds but he could begin doing
light, sedentary work as tolerated. (Tr. 623). On October 1,
2015, Wilkinson reported limited motion in his wrist, but
could wiggle his fingers, make a fist, and fully extend his
fingers. (Tr. 627). Following a nerve conduction study on May
5, 2016, the treating physician noted Wilkinson had mild
carpal tunnel syndrome in his left wrist. (Tr. 811). At that
time, he received injections in his left thumb
carpometacarpal joint, which he again received two months
later. (Tr. 811). Wilkinson had hardware from his fusion
surgery removed on July 28, 2016, because it was creating
issues. (Tr. 816). Wilkinson also underwent a left thumb
trapeziectomy at that time. (Tr. 816).
is right hand dominant. (Tr. 64). Wilkinson has had varying
degrees of problems with his right wrist since the early
1990's, when he received a worker's compensation
award for an injury to that wrist. (Tr. 331--333).
x-ray of the right wrist taken at a March 5, 2015 presentment
indicated “significant ulnar positive variance. He has
got deformity of the radius, as well as significant
radiolunate arthritis.” (Tr. 353, 612). The treating
physician noted Wilkinson had developed “progressive
difficulty with his right wrist” and assessed Wilkinson
as having right “wrist arthritis with ulnocarpal
impaction syndrome.” (Tr. 353, 612).
March 5, 2016, during a followup with respect to a surgery on
his left wrist, the treating physician noted that: Wilkinson
had “some swelling over the [right] wrist. There is
some tenderness about the radiocarpal joint.” The
physician continued: “EMG's do show that he has got
pretty mild carpal tunnel syndrome on the right” wrist.
another followup with respect to his left wrist,
Wilkinson's treating physician noted with respect to the
right wrist that Wilkinson “has intermittent flaring of
his symptoms. . . Continue[s] to have aching pain primarily
over the ulnar aspect with decreased motion and
discomfort.” (Tr. 812). He continued:
“Examination of his right wrist, he has a prominent
ulna. Tenderness over the [distal radioulnar joint]. Pain
with any range of motion at all. He has limited motion,
reasonable strength and sensation.” (Tr. 812). The
treating physician then reiterated his prior diagnosis of the
right wrist, stating that the x-ray imaging indicated
Wilkinson had significant lunate facet arthritis with
significantly positive ulnar variance with ulnar impaction.
(Tr. 812). The physician concluded by discussing the
possibility of Wilkinson needing surgery on the right hand to
preserve motion and provide longevity in the wrist. (Tr.
various times, Wilkinson also reported to medical personnel
he felt depressed. A September 4, 2013 report indicated
Wilkinson presented for treatment “with depressed mood
. . . .” (Tr. 451). A February 25, 2014 medical report
indicated the same. (Tr. 443).
Wilkinson filed for SSA benefits, he was referred to an SSA
consultant, Ed Kehrwald, Phd., for an in-person assessment
that was conducted on December 17, 2015. Dr Kehrwald reported
that, although Wilkinson stated he had depression stemming
from his inability to work, he “did not list many
symptoms” beyond reported anxiousness that distraction
could abate. (Tr. 744). The report further noted that,
although Wilkinson had a history of mild anxiety and social
anxiety, there “was no evidence for current problems
with conduct, hostility, paranoia, or thought
disturbance.” (Tr. 746). On the whole, Dr. Kehrwald
diagnosis was unspecified anxiety disorder with a few
depression symptoms, social anxiety, and initial insomnia and
interrupted sleep. (Tr. 743-746).
August 19, 2016, Wilkinson reported to Dr. Zimmerman, his
pain specialist, that he felt anxious and depressed and that
the Zoloft he was being prescribed was not helping him much.
Dr. Zimmerman's report stated that Wilkinson was
“positive for decreased concentration, dysphoric mood,
and sleep disturbance.” Dr. Zimmerman recommended that
Wilkinson return in about four weeks for further medication
management and “Anxiety/Depression.” (Tr. 969).
Other reports during 2016 also suggest that Wilkinson was
positive for depression, but on most of the occasions he did
not appear to be nervous or anxious. (Tr. 951-985).
conducted a hearing on Wilkinson's application on
December 7, 2016. (Tr. 30). Two people testified: Wilkinson
and a vocational expert. The ALJ examined Wilkinson first.
began by probing Wilkinson's daily activities. Wilkinson
testified he maintains a drivers license and drives “a
couple times a week” in dropping his children off at
school, running errands, “or something just to get out
of the house.” (Tr. 38). Wilkinson also testified to
traveling to Dickinson, North Dakota every two to three weeks
to shop. (Tr. 38)).
education, Wilkinson testified that he received his GED. (Tr.
38). He further testified that he took some college level
programming, but he did not receive any diploma or
certificate. (Tr. 39).
proceeded to ask Wilkinson about his ailments. Asked about
the cause of his mobility issue, Wilkinson testified he has
leg and back pain everyday. (Tr. 45). Wilkinson testified his
present pain came about after his July 2015 surgery. (Tr.
45). Such pain, though variable on a daily basis, could be
severe to the touch at times. (Tr. 45-46). Wilkinson stated
that he must often lay in bed for an hour or so before
getting up in the morning so as to allow his narcotic
medication to dull his pain. (Tr. 53, 61). Once risen,
Wilkinson stated his pain causes him to walk in a
self-described “waddle” fashion, (Tr. 47), and
precludes him from walking significant distances. (Tr. 54).
He testified that he when he does go shopping he often has to
find a place to sit after a short period of time and that
there have been times when, shopping with his wife, he had to
return to the pickup. (Tr. 53-54, 57-58). Wilkinson testified
he had recently begun physical therapy, which alleviated his
leg and back pain, but only temporarily. (Tr. 63).
his hands, Wilkinson testified he suffers from conditions in
both hands and wrists, which compound his mobility issues by
causing him difficulty in rising from a sitting or laying
position. (Tr. 46). Regarding his left hand, Wilkinson
testified that he cannot use that hand to care for himself on
issues as basic as toilet hygiene. (Tr. 48). He testified
that his left thumb has nerve damage and a severed bone,
which results in him dropping things quite frequently. (Tr.
48). With the fusion of his left wrist, Wilkinson testified
he has difficultly using a keyboard because he cannot turn
his hand side-to-side. (Tr. 48-49). Regarding his right hand,
Wilkinson testified that he had a metal plate inserted in the
wrist a number of years prior. (Tr. 51). He indicated that
his right wrist was in need of a surgery similar to the
fusion surgery performed on his left wrist. (Tr. 51). He
testified that, although he might be able to use a wrench
with his right hand, he could do so only momentarily before
the wrist would start swelling. (Tr. 60). Wilkinson testified
that he was trying to avoid surgery on his right wrist as
long as possible to maintain what articulation remains in
that hand. (Tr. 51-52). One of his primary concerns was
retaining the ability “to wipe myself” after
going to the toilet, something that he cannot do with his
left wrist and hand. According to Wilkinson, his wrist
problems have prevented him from lifting twenty pounds or
more for approximately three years. (Tr. 59). He also
testified that, because of his wrist problems, he lacks the
dexterity to tie his shoelaces, so he wears slip-on shoes.
testified that his ailments limit what he can do on a daily
basis. He testified that he spends much of his day on the
couch watching television. (Tr. 55). Pain permitting,
Wilkinson testified that he prepares simple dinner meals for
his family, although even that takes the better part of the
afternoon with his limitations. (Tr. 56). Wilkinson testified
that he is unable to perform various personal hygiene tasks;
he cannot perform laundry, vacuuming, sweeping, or other
homemaking tasks of the like; and he cannot hunt or fish.
next questioned a vocational expert (VE). The ALJ posited a
number of hypotheticals to the VE about the availability of
employment for an individual with varying degrees of
sequence of hypotheticals assumed the individual is capable
of performing some light work, including standing or walking
for six hours in an eight-hour work day. What was varied were
the assumptions regarding the functional capacity of the
individual's arms and hand. In one hypothetical, the ALJ
asked the VE to assume an individual with the following
limitations: an ability to lift twenty pounds occasionally
and ten pounds frequently; sit, stand, or walk for six hours
in an eight-hour work day; occasional climbing, stooping,
kneeling, crouching, and crawling; and frequent
handling and fingering in the dominant hand and
occasional handling and fingering in the
non-dominant hand. (Tr. 65). The VE testified that the
hypothetical individual would be capable of being an usher
(5, 000 jobs nationally) or bus monitor (14, 000 jobs
nationally). (Tr. 66). Notably, the VE testified that these
were the only jobs that she could provide and that they were
not simply illustrative of other jobs in the national economy
that could be performed on full-time basis with these
limitations. Altering that hypothetical, the ALJ's asked
the VE to assume that the individual was limited to
occasional handling in both hands. (Tr. 66). The VE
testified that sufficient employment would not exist in that
hypothetical. (Tr. 66). Again altering the second
hypothetical, the ALJ posited a fourth hypothetical requiring
that individual to lay down half of a work day. (Tr. 67). The
VE testified that would eliminate both the bus monitor and
usher jobs and that there were no other job she could offer
as examples. (Tr. 67).
sequence of hypotheticals varied both the number of hours an
individual could stand or walk as well as the ability to
handle and finger. The ALJ asked the VE to assume the ability
of frequent handling and fingering with the dominant hand and
only occasional with the non-dominant hand and to further
assume the individual was capable of standing or walking up
to four hours in an eight-hour workday. At that point, the
testimony got confused but, after some clarification, the VE
testified that the only job left that she could identify was
that of a bus monitor. The limitation of being able to stand
or walk for up to four hours in an eight-hour work day
eliminated the usher position. (Tr. 67-70). Finally, the VE
testified that, if the individual has manipulative
limitations and is not able to stand or walk for up to four
hours in an eight-hour workday, there would be no jobs
available. (Tr. 68).
Wilkinson's spouse did not testify at the hearing, she
did submit a detailed description of he husband's
limitations, which was dated October 26, 2015. What she
described was consistent with Wilkinson's testimony,
including, particularly, her perceptions of his inability to
stand or walk for any significant amount of time, the
restrictions resulting from his wrist and arm impairments,
and the fact that physical activity he is able to engage in
is minimal, including only minimal household chores. (Tr.
of Wilkinson's physical and mental RFC were made by
state-agency consultants. These assessments will be addressed
later as necessary.
stated that she evaluated Wilkinson's claim for
disability by following the established five-step sequential
analysis for determining whether a person is disabled. (Tr.
11). At step one, the ALJ concluded Wilkinson had not engaged
in substantial gainful activity since March 5,
2015-Wilkinson's amended disability onset date. (Tr. 13).
two, the ALJ concluded that Wilkinson's obesity,
degenerative disc disease of the lumbar spine, bilateral
carpal tunnel syndrome, radioscapholunate fusion of the left
wrist with hardware removal, and left thumb carpometacarpal
arthritis constituted severe impairments. (Tr. 13). The ALJ
concluded Wilkinson's alleged mental impairments were not
severe because, under the relevant regulations, Wilkinson
had: (1) no limitation with understanding, remembering, or
applying information; (2) mild limitation interacting with
others; (3) mild limitation with concentrating, ...