Brent Z. v. Kijakazi
| Decision Date | 29 January 2023 |
| Docket Number | 22-CV-511 (JWB/JFD) |
| Parties | BRENT Z., Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant. |
| Court | U.S. District Court — District of Minnesota |
REPORT AND RECOMMENDATION
Pursuant to 42 U.S.C. § 405(g), Plaintiff Brent Z. seeks judicial review of a final decision by the Commissioner of Social Security denying his applications for disability insurance benefits (DIB) and supplemental social security income (SSI). [1] Plaintiff suffered a stroke on August 15 2018 and his resulting impairments include “fatigue right arm and right foot weakness, right facial droop and speech impairment[,] and a neurocognitive disorder.” (R. 15.) The case is currently before the Court on the parties' cross-motions for summary judgment[2] (Dkt. Nos. 14 16) which were referred to the undersigned for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and District of Minnesota Local Rule 72.1(a)(3)(D). For the reasons set forth below, the Court recommends that this matter be remanded to the Social Security Administration (“SSA”) to correct an error of law.
Plaintiff suffered a stroke (R. 381) that forced him to leave his job as a home remodeler (R. 38, 259). After he moved to Minnesota to be near family, he applied for DIB and SSI. (R. 38, 259.) He now appeals the Commissioner's decision denying him these benefits. (Compl. 1.)
On August 15, 2018, Plaintiff presented to a Kansas emergency room with an altered mental state, right facial droop, and slurred speech. (R. 381.) A CT scan revealed that he had had a stroke. (R. 381.) Plaintiff had a history of untreated hypertension, acute kidney injury, alcoholism, and smoking. (R. 382-83.) According to his family, Plaintiff moved to Minnesota “for a short time” so that his family could care for him, but he eventually returned to Kansas to continue his job with a remodeling firm, where he had worked for 21 years. (R. 259, 662.) Plaintiff did not have health insurance and his family reported that he did not have access to physical therapy in Kansas. (R. 259, 662.) Despite the work modifications that the owner of the remodeling firm gave Plaintiff, Plaintiff could not continue working. (R. 38, 44-45, 259,662, 666.) The owner contacted Plaintiff's family and helped arrange for his return to Minnesota. (R. 259.) Plaintiff started receiving medical care, including occupational and physical therapy, in Minnesota in November 2018. (R. 545-47; 574-76; 661.)
Plaintiff has had other notable health developments. In February 2020, doctors discovered that Plaintiff had a kidney stone (R. 722) and decreased kidney function, possibly due to overtreatment of his hypertension (R. 725-28, 734). Plaintiff was diagnosed with stage three chronic kidney disease. (R. 787, 863.) Surgeons removed Plaintiff's kidney stone in March 2020. (R. 802-03.)
On November 15, 2018, Plaintiff applied for DIB under Title II of the Social Security Act. (R. 74.) On November 27, 2018, Plaintiff applied for SSI under Title XVI of the Act. (R. 58.) In both applications, Plaintiff alleged that he was disabled and unable to work as of November 2, 2018. (R. 58, 74.) Plaintiff was last insured for DIB purposes on December 31, 2022.[3] (R. 57, 93, 99, 281, 325, 365.) A DIB claimant must establish that they were disabled before their insured status expires. Pyland v. Apfel, 149 F.3d 873, 876 (8th Cir. 1998). Thus, the relevant period for Plaintiff's DIB claim is from November 2, 2018 (the alleged disability onset date) to December 31, 2022 (his date last insured). SSI benefits are not payable before an application is filed, 20 C.F.R. § 416.335, and thus, the relevant time frame for Plaintiff's SSI claim is from November 27, 2018 (the date of the SSI application) to May 5, 2021 (the date of the ALJ's decision). See Cruse v. Bowen, 867 F.2d 1183, 1185 (8th Cir. 1989) (); Myers v. Colvin, 721 F.3d 521, 526 (8th Cir. 2013) ().
In his applications, Plaintiff reported that the weakness and poor grip in his right arm, dragging right foot, fatigue and associated aphasia, memory challenges, slurred speech, and slower cognitive recall prevented him from working. (R. 58, 284.) The SSA ordered a consultative examination after concluding that there was not sufficient evidence in the medical record to evaluate Plaintiff's claimed memory challenges. (R. 62, 661.) The examiner, Lyle W. Wagner, Ph.D., summarized his findings in a medical source statement. (R. 666.) Dr. Wagner found that Plaintiff had a verbal IQ in the “Low Average” range, meaning “he is capable of understanding simple instructions,” but would “have Moderate to Severe difficulty remembering and following” them. (Id.) Dr. Wagner found that Plaintiff would have “Moderate to Severe” difficulty with “sustaining attention and concentration” and with “carrying out work-like tasks with reasonable persistence and pace.” (Id.) Dr. Wagner found that Plaintiff's cognitive challenges would give him “Mild to Moderate difficulty” engaging with others and “Moderate to Severe difficulty” in handling the stress of an entry level job. (Id.)
The SSA denied Plaintiff's initial claims for both DIB and SSI (R. 71, 87, 128, 129, 131, 132) and affirmed those denials on reconsideration (R. 108, 125, 143, 147). Plaintiff appealed to an ALJ (R. 150), who held a hearing (R. 32-56). At the start of the hearing, the ALJ asked counsel for Plaintiff if he considered the record complete, and counsel agreed that it was complete, making no objections to any exhibits in the ALJ's file. (R. 36.) Plaintiff testified under oath about his attempt to return to work after his stroke. (R. 38, 4445.) He reported that he did not look for other work. (R. 38.) Plaintiff testified that the main impairment that prevented him from working was weakness in his right arm and leg. (R. 39.) He reported that he could only walk about 25 minutes before needing to take a 15-to-20-minute break[4] (R. 40), that he needed to nap during the day (R. 41), and that he had difficulty speaking when he was tired (R. 43). Plaintiff also explained that he had poor short-term memory and that he needed to be reminded of something every day. (R. 43.) He further testified that he could not complete an unfamiliar task, and that he needed to stop and “rethink” familiar tasks before he could finish them. (R. 47.) Plaintiff reported limited vision in his left eye. (R. 46.) Finally, Plaintiff testified that his condition had not changed substantially since 2019. (R. 47.)
The ALJ then questioned the vocational expert, Mr. William Tisdale. (R. 50.) The ALJ provided Mr. Tisdale with the following hypothetical on which to base his testimony:
[P]lease assume an individual of Claimant's closely approaching advanced age, high school education and past work as you have described who has the residual functional capacity to lift and/or carry up to 10 pounds frequently and 20 pounds occasionally; who can sit about 6 hours in an 8-hour day with normal breaks; can stand and/or walk about 6 hours in an 8-hour day with normal breaks. Should never climb ladders, ropes or scaffolds; only occasionally climb stairs or ramps; balance as defined in the [Selected Characteristics of Occupations]; push and pull with the right upper extremity, stoop, kneel, crouch or crawl. The individual can frequently handle, finger and feel with the right dominant upper extremity. Can tolerate only occasional exposure to work around hazards such as dangerous moving machinery and unprotected heights. The individual is able to understand, remember and carry out short/simple instructions; able to maintain attention and concentration for routine work for two-hour segments; able to respond appropriately to work pressures in a usual work setting and be able to respond appropriately to changes in a routine work setting.
(R. 51-52.) Mr. Tisdale opined that such a person could not do the kind of work Plaintiff had done before his stroke but testified that there was other work that such a person could do, including that of a survey worker, merchandise marker, or routing clerk. (R. 52.) After hearing the testimony and reviewing the record, the ALJ concluded that Plaintiff was not disabled under the Social Security Act (R. 25). The ALJ summarized her findings in a written decision. (R. 13-26.)
The ALJ's decision followed the five-step sequential analysis for social security disability determinations described in 20 C.F.R. §§ 404.1520 and 416.920. At each step, the ALJ considered whether Plaintiff was disabled based on the criteria of that step. If he was not, the ALJ proceeded to the next step. See 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4).
At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity[5] after his alleged disability onset date of November 2, 2018. (R. 15.) Since the ALJ found that Plaintiff was not involved in substantial gainful activity, the ALJ proceeded to step two of the analysis.
At step two, the ALJ found that Plaintiff had multiple severe impairments: a “stroke resulting in fatigue, right arm and right foot weakness, right facial droop and speech impairment[,] and a neurocognitive disorder.” (R. 15.) The ALJ found Plaintiff's acute kidney injury to not be severe[6] because it was not a condition lasting twelve months and concluded that Plaintiff's chronic kidney disease has “not resulted in any specific functional limitations and is merely monitored.” (R 16.) Plaintiff's...
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