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Wilkinson v. Berryhill

United States District Court, D. North Dakota

November 15, 2018

Randy Wilkinson, Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security Administration, Defendant.

          ORDER RE CROSS-MOTIONS FOR SUMMARY JUDGMENT

          Charles S. Miller, Jr., Magistrate Judge

         Plaintiff 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, 15).[1]

         I. BACKGROUND

         A. Procedural History

         Wilkinson 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).

         B. General Background

         As of 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).

         C. Medical and Other Records

         Wilkinson 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).

         1. Lower back and leg

         Wilkinson 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. (Tr. 679-694).

         After 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).

         Shortly 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. (Tr. 672-675).

         Wilkinson 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. (Tr. 879).

         On 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, 859-861).

         Following 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).

         While 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).

         On June 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. (Tr. 641-643).

         On July 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).

         On 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. 633).

         In a 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).

         Wilkinson 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).

         In 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).

         Wilkinson's 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).

         2. Left wrist/hand

         At an 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).

         3. Right wrist/hand

         Wilkinson 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).

         An 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).

         On 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. (Tr. 811).

         On 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. 813).

         4. Mental health

         At 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).

         After 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).

         On 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).

         D. Administrative Hearing

         The ALJ 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.

         The ALJ 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)).

         As to 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).

         The ALJ 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).

         As to 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. (Tr. 49-50).

         Wilkinson 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. (Tr. 57-58).

         The ALJ 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 functional capacity.

         One 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).

         Another 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).

         E. Other Evidence

         While 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. 238-245).

         Assessments of Wilkinson's physical and mental RFC were made by state-agency consultants. These assessments will be addressed later as necessary.

         F. ALJ's Decision

         The ALJ 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).

         At step 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, ...


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