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Larson v. Saul

United States District Court, D. South Dakota, Southern Division

August 15, 2019

NEIL T. LARSON, Plaintiff,
v.
ANDREW SAUL, Commissioner of the Social Security Administration; Defendant.

          MEMORANDUM OPINION AND ORDER

          VERONICA L. DUFFY, UNITED STATES MAGISTRATE JUDGE.

         INTRODUCTION

         Plaintiff Neil T. Larson seeks judicial review of the Commissioner's final decision denying his application for disability insurance benefits under Title II and supplemental security income under Title XVI of the Social Security Act.[1] Mr. Larson has filed a complaint and now moves to reverse the Commissioner, requesting the court to reverse the Commissioner's final decision denying him disability benefits and to grant an award of benefits outright without remanding to the agency. In the alternative, Mr. Larson seeks an order reversing and remanding to the agency for a de novo hearing.

         This appeal of the Commissioner's final decision denying benefits is properly before the court pursuant to 42 U.S.C. § 405(g). The parties have consented to this magistrate judge resolving the case pursuant to 28 U.S.C. § 636(c). Based on the facts, law and analysis discussed in further detail below, the court remands for further consideration at the agency level by the Commissioner.

         FACTS[2]

         A. Statement of the Case

         The record shows Mr. Larson filed prior Social Security disability claims in January 2005, June 2008, and June 2009. AR103. On November 18, 2010, an ALJ denied Mr. Larson's claims from 2009. AR65-75. Mr. Larson did not appeal the ALJ's unfavorable decision on November 18, 2010. AR264.

         This current claim begins with Mr. Larson's filing for disability insurance benefits (“DIB”) and supplemental security income (“SSI”) benefits on May 25, 2011, alleging disability since August 15, 2007. AR225, 232. The state agency denied his claim on July 26, 2011, (AR25) and after reconsideration on March 12, 2012. AR132, 135. The case went to hearing before an administrative law judge (“ALJ”) on March 20, 2013. AR10.

         On April 2, 2013, the ALJ denied the claim. AR20. Mr. Larson requested Appeals Council review, submitting additional medical evidence. AR314-18. On August 21, 2014, the Appeals Council made the evidence part of the record (AR4) but “found no reason under our rules to review the Administrative Law Judge's decision … This means that the [ALJ's] decision is the final decision of the Commissioner ….” AR1.[3]

         Mr. Larson was born in 1970. AR225. He was adopted at three weeks of age. AR556. Circumstances of his birth and congenital defects are noted at ¶ 359, 511, 514, 556 and elsewhere in the record. He grew up on a farm near Beresford. AR399. He felt that he did not fit in at home or at school and was teased and bullied all his life. AR398, 556.

         Mr. Larson was 1.5 credits short of the number needed to graduate from high school and has a general equivalency degree (“GED”). AR556. He started but dropped out of a course in architectural drafting and building construction at Mitchell Technical Institute. AR399, 1197. He started an electromechanical technology course at Southeast Technical Institute, dropping out in 1994. Id.

         After technical school, Mr. Larson went to work for Tomacelli's Pizza. AR277. During the next 13 years, he worked mainly as a pizza-delivery driver, typically part-time, often holding two jobs. AR269, 243-45. From 1995-2000, he worked for Little Caesar's. AR269, 277. He worked for Denucci Pizza from 1997-99. AR269, 277. In 1999-2000, he painted commercial grain dryers. AR277, 284. From 2000-04 he worked for Papa John's Pizza. AR277. From 2004-06, he worked for Quiznos, a sandwich shop. AR277, 1998. At the same time he worked for Pizza Hut. AR244-45, 277. In 2007 he worked part-time for Pizza Hut. AR245, 269.

         Mr. Larson has not worked since 2007, except for taking people to their appointments one or two hours per month. AR40, 277, 723, 789-90, 1157, 1165, 1167, 1178, 1180.

         Mr. Larson did not know his family medical history. AR326, 514. He was born “with eyes pointing out, ” had surgery and still had a lazy left eye. AR514, 539. He gave inconsistent dates of surgeries: an undescended left testicle was repaired in 1978 or 1983 (AR511, 514); in 1992 or 1993 he had left orchiectomy for testicular cancer. AR511, 514.

         B. Medical Evidence

         1. Medical Evidence Pre-2009

         Mr. Larson was seen at the Avera emergency room on November 14, 2007, not feeling well; his initial blood sugar level was 409. AR1669. After he was given insulin, his blood sugar level dropped “218, adequately controlled.” AR1669.

         Mr. Larson was admitted to Avera through the emergency room on September 19, 2008, for acute poorly controlled diabetes, hyperglycemia with blood sugars running high the last six weeks despite his attempts to control the level with insulin and diet modification. AR1651, 1658. His blood sugar was 424 on the day of admission, and his liver function tests were elevated. AR1651. The emergency room staff requested a psychiatric consult, but Mr. Larson asserted he had no problems with anxiety or depression. AR1651. Mr. Larson also reported episodic tingling sensations in his fingers and feet. AR1652. A noninvasive Doppler was obtained of Mr. Larson's right leg due to pain which revealed insufficiency right posterior tibial with superficial varicosities in the right calf, has flow when compressed, low probability for clotting. AR1660. Mr. Larson was discharged on September 22, 2008, but the discharge report was not included in the Avera records. AR1655, 1663-65.

         2. Medical Evidence 2009

         Mr. Larson received medical care at Falls Community Health (“Falls Clinic”), where he reported being a patient since 1992. AR273. On November 27, 2009, he was on TriCor22, Flonase, Actos, Cozaar, two kinds of insulin (regular and NPH pork), and Crestor. AR361. On December 29, 2009, he had multiple allergies, home glucose readings that ran 140-150, and a record of elevated blood pressures. AR358. Mr. Larson reported he felt “well.” AR358. He had peripheral vascular disease, varicose veins, diabetes, “trouble with his knees and back, ” and migraine headaches “where he loses mental and visual focus.” AR359. In December 2009, his blood pressure was 146/108, and diabetes was uncontrolled and uncomplicated. AR359-60.

         3. Medical Evidence 2010

         In January, Mr. Larson treated at Falls Clinic and advised that he was “going to get back on diet and dailey [sic] exercise to try to bring sugars down.” AR358. In July, Judy Jacobsen, Falls Clinic physician assistant, prescribed Trazodone for Larson's inability to sleep more than one to four hours at night. AR351-52. She recorded complaints of radiating low back pain, with little relief from chiropractic care. AR356-46. She noted difficulty rising from a sitting position. AR346. The glucometer reported blood sugars from 60-400. Blood pressures were high. Id. Ms. Jacobsen noted Mr. Larson had run out of and was not taking his blood pressure medication, and he was not working on exercising. AR351. In December, triglycerides, Glucose, BUN, Creatinine, and A1C were elevated. AR362-63.

         4. Medical Evidence 2011

         In March 2011, Wallace Fritz, M.D., at Falls Clinic noted three to five blood sugar checks daily and “runs from 70-400. At waking, 140; fluctuates after meals. … Has trouble sleeping, insomnia, restless leg syndrome, OSA, has multiple complaints of neighbors being loud etc that cause him to be unable to sleep. He does not follow sleep hygiene and has tried both trazedone and ambien with minimal results. Resistant to any change suggested.” AR341. He has dyspnea that Larson said was due to lack of exercise. Id. Habits were “not exercising regularly, exercising erratically, and sedentary tries to walk daily, 15 minutes. Goes to Walmart 1-2 weekly for exercise.” AR342. He felt “tired or poorly.” Id. Assessment: “Primary diagnosis of type 2 diabetes uncomplicated, controlled, Hypertension, Hyperlipidemia, and Type 2 diabetes - uncomplicated, uncontrolled.” AR343. Dr. Fritz recommended ACE inhibitors and HMGCoA reductase inhibitors, and he added Hydroclorothiazide30-Lisinopril 12.5 mg-20 mg, and Lisinopril 20 mg to Larson's regimen. Id. Ambien could be considered for insomnia if available on the PAP. Id.

         On April 26, 2011, Mr. Larson sought treatment at Sanford Medical Center emergency room for chest tightness, mild shortness of breath and palpitations “after eating a large lunch with beans.” AR326. Hannah Hall, M.D., recorded: “Patient states that normally he develops some chest discomfort and palpitations described as a fast and strong heart beat after eating but that they normally only last a few minutes …. He also complains of feeling dizzy … similar to when his blood sugar runs low….” However, he had checked his blood sugar and it was 119. Id. He said his heart rate was usually in the upper 90s to 100s but on this day was in the 120s. Upon arrival, chest pain had resolved; dizziness and nausea persisted. Id. The patient was on two kinds of insulin plus Pioglitazone, two statins and two antihypertensive medications. AR327. He had gained 40 pounds in the last year. Id. He weighed 280 (BMI 41.35). AR328. Mr. Larson stated “his blood sugars are well controlled and he can easily feel his lows.” AR328. The ECG was “borderline” with heart rate 126 (tachycardia), probable left atrial abnormality, borderline T- wave abnormalities in the inferior leads, T-wave abnormalities involving the lateral leads, and isolated Q wave in III. AR323. The laboratory reported elevated blood urea nitrogen (BUN) and D-dimer. AR329-30. Glucose and Troponin POC were normal. AR332. “[C]ardiac risk factors include[d] HTN, DM, dyslipidemia and obesity.” AR330. Computerized tomographic angiography (CTA) of the chest ruled out pulmonary embolism. AR320. Mr. Larson did not want a cardiology referral ….” AR330. The plan: “Discharge to home. Call FCH [Falls Community Health] for prompt follow-up and to discuss options for further cardiac evaluation ….” Id.

         On April 28, 2011, Dr. Fritz noted Mr. Larson “had a negative cardiac workup and eventually a CTA which was negative. Feeling better now but continues to have some left shoulder pain, which he feels is secondary to sleeping on it wrong and some mild dizziness, although this is improved.” AR338. Blood sugars ranged from 150-250 and occasionally went to 400. Id. He could “somatically feel” sugar changes and manage them with insulin and rechecking his blood sugar. Id. Blood pressure was 148/100 and 146/98; he weighed 293. AR339. His A1C was 8.8. AR339, 367. Dr. Fritz diagnosed “uncomplicated, controlled” type 2 diabetes and lower back pain; he offered no new treatment plan. AR339.

         On June 29, 2011, Dr. Fritz said glucometer readings ranged from the 60s to 450s. AR368. Mr. Larson had difficulty sleeping even on Ambien and Trazodone: “Sometimes will sleep for 12-15 hours straight and then other days 2-3 is all he gets for the day. Is not very active at all.” Id. He weighed 300 pounds. Id. Dr. Fritz adjusted Mr. Larson's insulin, recommended Melatonin for sleep, discussed sleep hygiene, and encouraged Mr. Larson to increase his activity. AR369.

         On August 14, 2011, Mr. Larson sought ER treatment for headache, dizziness, and chest discomfort with shortness of breath. He thought he got these symptoms with elevated blood pressure; it was 167/87. AR393-94. He told CNP Augspurger that “normal BP is 160s.” AR393. He had shortness of breath, chest discomfort, dizziness and headaches. AR394. He reported no musculoskeletal problems. AR394. Physical exam was normal, and the ECG showed “significant rhythm changes, ” severity “normal.” AR395. He did not see a physician, and a cardiology referral was completed. Id.

         On August 19, 2011, Mr. Larson saw Ms. Jacobsen. AR370. She noted the ER visit for chest pain and dyspnea. AR370. HGMs were 50-350, and cardiology workup was scheduled. Id. He was “feeling tired or poorly, ” had urinary frequency and nocturia. Id. He weighed 285 pounds. Id. He had insomnia. Diabetes was “uncomplicated, controlled.” AR371. The lab reported A1C of 9.2. AR367. Ms. Jacobsen wrote a letter telling Mr. Larson to increase insulin to 60 units in the morning and 40 in the evening, and “have cardiologist send us MRs.” AR371.

         On August 24, 2011, Mr. Larson's nuclear stress test was negative. AR381. The 2-D echocardiogram revealed mild left ventricular hypertrophy, mildly enlarged left atrial chamber, probably enlarged right atrial chamber, trace of tricuspid regurgitation, mild pulmonary hypertension, and ejection fraction of 65 percent. AR384.

         On October 9, 2011, Mr. Larson presented to the emergency room. AR377. Christopher J. Carlisle, M.D., noted “Pt with very depressed affect called an ambulance for anterior c/p of 2h duration. He's been w/u through myoview stress test to date with neg results … [H]e … thinks it might be stress related and … this is what he was told after his stress test last month.” Id. Dr. Carlisle noted Mr. Larson's ECG was unremarkable. AR378. Assessment: “Ongoing problems with [chest pain], possibly due to anxiety; no evidence of cardiac [disease]. [Patient] seems resigned to this; almost matter-of-fact in discussing it.” AR378.

         5. Medical Evidence 2012

         In April, 2012, Mr. Larson presented at the hospital with “generalized shakes today after waking up this morning. Patient states he drank a lot of caffeine last night and this morning found blood sugar to be markedly elevated.” AR406. He did not take his insulin but came to the emergency room. AR406. He denied chest discomfort but felt “a little sob which is also typical for him with these episodes. He thinks he just drank too much coffee.” Id. Physical and neurological exams were normal. AR406-07. The ECG was negative. Chest x-ray showed “mild CM” (AR407), unchanged from April 2011 AR413. Glucose was 326. AR407. The patient declined further workup, was anxious to go home and was discharged. AR408.

         On October 19, 2012, Mr. Larson was hospitalized for diabetic ketoacidosis. AR421. He presented with nausea, vomiting and lightheadedness. AR415. He told Christopher Wong, M.D.: “he gets like this every couple months … usually associated [with] high or low sugars.” Id. He took six units of insulin after finding his sugar was 292; it helped. He checked his blood pressure (170/112) and pulse (126). Id. He reported mild chronic shortness of breath, nausea, lightheadedness, and chronic low back pain. AR415-16. Darren Manthey, M.D., evaluated Mr. Larson and said he had intermittent chest pressure, was tremulous, anxious, and tachycardic. AR419. “My initial assessment … established that Neil Larson has DKA [diabetic ketoacidosis], which requires immediate intervention … [H]e is critically ill.” AR421. An ECG showed sinus tachycardia and significant rhythm changes. AR417, 419, 445. The lab reported elevated WBCs (abscessed tooth was diagnosed after admission) (AR429-30), Glucose (364), BUN (22), and Anion gap (24). AR417. Chloride and CO2 were decreased. AR419-20. His eGFR was 77 initially (AR441) and rose to 90. AR440. Hypertriglyceridemia was present. AR436. Acetone (serum ketones) was elevated at 1.58. AR440. Thane Gale, M.D., recorded a “long history of awakening from sleep with SOB and tachycardia, easily falls asleep in daytime.” AR430. The patient used smokeless tobacco and drank about 120 ounces of alcohol a week. AR431. Blood pressure was 151/97, pulse 102, weight 190, and O2 saturation 92%. AR432. Physical exam was normal and the patient was alert and oriented. AR431. Diagnoses: Diabetic ketoacidosis - causing nausea, vomiting and lightheadedness; hypertension; questionable sleep apnea; and hypertriglyceridemia with history of pancreatitis. AR436. The Pulmonary Function Lab found intermittent sleep desaturations, and recommended polysomnography if clinically indicated. AR444.

         On October 23, 2012, Mr. Larson was discharged by Tara Geis, M.D. AR422. Mr. Larson was provided diabetic information sheets that explained that being sick could raise blood sugar. Signs and symptoms of low blood sugar, or hypoglycemia: shaky, fast heartbeat, sweaty, dizzy, anxious, hungry, blurry vision, weak or tired, headache, nervous or upset. Signs and symptoms of high blood sugar, or hyperglycemia: blurry vision, weak or tired, increased thirst, increased hunger, and urinary frequency. AR424-25. Dr. Geis advised that Mr. Larson could “[r]esume normal activity” upon discharge. AR424.

         On December 28, 2012, Mr. Larson was hospitalized. AR465. He had “very vague complaints, mild chest discomfort, difficulty breathing, rapid heart rate, lightheadedness for 2 days but worsening during his episodes of dyspnea, feeling very fatigued.” AR469-70. He reported night sweats, nightmares, and insomnia. AR470. He had slept an hour the night before, began having vague chest complaints at about 1 pm, “but was fine doing activities around his house ….” AR470. “Patient has poorly controlled DM, on insulin, A1C is usually around 9.5 …. Has had multiple bouts of DKA [diabetic ketoacidosis] … and has been in the ICU for pancreatitis in the past.” Id. He had “anxiety which he admits could be playing a role in this.” His O2 saturation was 91 percent with heart rate in the 110s. Id. Review of systems was positive for fatigue, night sweats, sleep disturbance, anxiety, shortness of breath and wheezing, chest pain and palpitations, dizziness. AR470-71. On physical exam, peripheral pulses were reported as both “normal” and “diminished.” Varicosities were present. AR479. Laboratory abnormalities were consistent with his typical pattern. AR472-73. But D-dimer and troponin I were elevated. AR487. The ECG showed sinus tachycardia. AR475. The CTA revealed thyroid abnormality, fatty liver with calcified lung nodule, and gallbladder calculi. AR490. Mark List, M.D., “considered that this is simply anxiety/panic attacks but with elevation of troponin and risk factors needs further workup.” AR475. Because of his history of DVT and elevated D-Dimer, “will check bilateral LE dopplers.” The patient “does not appear to be in DKA although wonder about chronicity of acidosis with compensation.” AR476. During Mr. Larson's first night in the hospital, Glucose was critically elevated at 439. AR485. At 02:55 hours, Glucose persisted at 415. BUN was elevated at 29. AR485.

         The next day, December 29, 2012, Mr. Larson had a cardiology consult with Tomasz Styz, M.D. AR452. He had a history of “rest cp suggestive of unstable angina, ECG with subtle changes, enzymes negative.” Id. He had Troponin elevation. The patient described chest discomfort with shortness of breath the day before. He thought it was an insulin reaction but it wasn't. Id. “He did have a negative stress test about 1 year ago. He is sedentary and very limited functionally by back pain. States he has trouble standing for periods of time due to pain in back and leg swelling.” Id. Cardiac risk factors included “DM (since pancreatitis in 2002), HTN and dyslipidemia.” Id. He drank about 120 ounces of alcohol per week. AR453. On review of systems, Mr. Larson had “ cough, ” “ shortness of breath, ” and chest discomfort or mild dyspnea on exertion. AR454. On physical exam he appeared anxious. He had diminished peripheral pulses in both feet and varicosities. Id. The laboratory reported abnormal white cells, Glucose 232 and BUN 29. AR454-55. Since he could not “walk on T due to significant back issues, ” he would have a “lexi stress” test. AR455. Before Lexiscan injection, he had nonspecific ST-T changes; these did not change during the injection. Resting left ventricle ejection fraction was 56 percent; the stress “LV EF” was 52 percent. AR458, 507. During the injections he reported “[n]o symptoms suggestive of angina.” AR507. The study was “equivocal.” Perfusion images demonstrated a small defect involving the apical wall(s) that appeared partially reversible. AR458. Venous Doppler studies revealed an “incompetent 88 ms GSV Junction, ” diagnosed as superficial venous insufficiency in the right lower extremity. AR460. Orvar Jonsson, M.D., ordered lab studies. AR483. Larson's eGFR was low at 57. BUN and Creatinine were elevated. AR483. Dr. Jonsson ordered cardiac catheterization with possible angioplasty. AR481, 482. Cardiac catheterization and angiogram were accomplished on December 31, 2012. AR494-95. Thomas Stys, M.D., reported findings: the LAD (left anterior descending artery) had 30 percent stenosis of the mid LAD and diffuse, up to 80 percent, stenosis of “small vessel distal LAD.” There was 30 percent ostial stenosis of the circumflex and 20 percent distal stenosis of the right coronary artery. AR495-96. Dr. Stys diagnosed “Small vessel disease.” AR496. He recommended medical therapy. AR502. Tracy Davies, M.D., wrote the discharge summary, noting “multiple risk factors for heart disease including uncontrolled diabetes, hyperlipidemia, and obesity.” AR465. “Cath showed stenosis of smaller lateral vessels and no stenting was performed.” She noted “multiple bouts of DKA over past couple of years and has been in the ICU for pancreatitis in the past.” AR468. She said hypertension was moderately well controlled on lisinopril and HCTZ, and high cholesterol was “well controlled on Statin.” Id. In the same note, Dr. Davies stated “Hyperlipidemia with triglycerides >600. Mr. Larson is already on the max dosing of Crestor and Tricor. He states he is compliant … [T]his is a significant risk factor for cardiac disease and his medications are optimized, so he needs to change his diet. Again, this was met with much resistance and many excuses.” AR466. He was unwilling to stop drinking. Fish oil would be added to his medications and the primary care provider could make further changes. AR466. Dr. Davies talked to Mr. Larson about his cardiac risk factors. His “excuses” were “mostly related to money and agoraphobia” as to why he could not change his diet or exercise. AR465. Discharge diagnoses on December 31, 2012, were chest pain, right lower lobe pneumonia, diabetes mellitus, hypertension, hyperlipidemia, and GERD. AR465.

         6. Medical Evidence 2013

         On January 14, 2013, Ms. Jacobsen recorded ongoing back pain and the patient's statement that chiropractic treatment helped for “only a day anymore.” AR462. She noted muscle spasm. “No money for MRI which we discussed on a previous visit. Pain radiates down both legs and both legs will feel numb.” Id. Regarding his recent hospitalization, she stated “Cardiology work up good.” Id. His musculoskeletal system was “normal, ” he was able to twist his torso, and he had no neurological deficits. AR463. She renewed Naproxen and said he should exercise more. Id.

         Mr. Larson was seen at the Physicians Vein Clinic in July, 2013, for some “significant” symptoms in the veins of both legs. AR1421. Treatment was delayed due to lack of insurance. AR1421.

         In October, 2013, James Dickerson, Ph.D., administered a battery of tests during neuropsychological evaluation, including Wechsler Adult Intelligence Scale-Fourth Edition (WAIS-IV) Wide Range Achievement Test 4 (WRAT 4), Wechsler Memory Scale-Fourth Edition (WMS-IV) and Halstead-Reitan Neuropsychological Battery. AR558. The evaluation started at 9:00 a.m. and lasted until 7:00 p.m. and included a one-hour clinical psychological/psychiatric interview. AR559. He found much variability in Mr. Larson's scores. AR59-60. Processing speed was 4th percentile. AR559. “This extremely low score is attributed to two scores … involving hand-eye coordination.” Id. He was an “impaired verbal learner, ” in the second percentile, which is important because “most learning on the job is given verbally.” AR560. Mr. Larson's ability to remember any new verbal learning later or after 30 minutes would be equivalent to an IQ score of 70. AR560. Mr. Larson was a much better visual learner with scores from the 77th to 99th percentile. AR561. On the Halstead-Reitan Battery, Mr. Larson failed four of seven tests “for an Impairment Index score of .57 indicating near certain brain dysfunction.” Id. Dr. Dickerson diagnosed: Dementia due to Organ Failure and Encephalopathy, as well as panic disorder with agoraphobia and dysthymia. AR563. Dr. Dickerson reference a 2013 New England Journal of Medicine report that “survivors of critical illness often have a prolonged and disabling form of cognitive impairment that remains inadequately characterized. Longer duration of delirium was associated with worse global cognition and executive function scores.” AR564. Dr. Dickerson also noted behaviors that “seem ingrained and dysfunctional but largely unconscious” reported by Mr. Larson's parents: He was “hyper - but doesn't follow through and doesn't seem able to get necessary things done, for example, a re-application for food stamps.” AR554. “In the most basic social and occupational responsibilities, like showing up on time for a job, appointments, he has a great deal of difficulty planning his time …. He has great difficulty organizing and planning a day …. He doesn't seem able to set goals and plan the steps to achieve them. He has trouble transitioning, shifting gears, and may be come angry when ‘interrupted.' ” AR554-55. The parents reported, “His sleep pattern is very fitful and disturbed. He shops at night at Wal-Mart and HyVee around 2:00 a.m. to 5:00 a.m. to avoid crowds.” He wanted to please, and seemed to be good with children and animals, but otherwise did not seem to have any special strengths. Id. He had always had trouble making friends. Id. He did not date or socialize with females. Id. He was the product of incest between an 18-year-old brother and 14-year-old-sister. He discovered this when he was 23. AR556. Mr. Larson himself stated that “he felt that he did not fit in at home and felt that way to some extent while in school.” AR556.

         Dr. Dickerson noted that Mr. Larson's “grip strength [testing] scores overall were normal for his age.” AR561-62.

         Dr. Dickerson assessed Mr. Larson's GAF at 46 and opined that Mr. Larson could not perform the 209.687-026 Mail Clerk Job. AR570. He explained that on the GATB/SAGE Test a successful mail clerk is to have general learning ability and verbal ability equal to the middle third of the working population, and the reading and sorting of each new piece of mail is a new unique verbal learning task. The task that best measures that ability neuropsychologically is on the Weschler Memory Scale 4 called verbal paired associates 1 and 2, and Mr. Larson had a scaled score of 5, or bottom 10% on part 1, and a score of 4 or bottom 2.5% on part 2. AR570. Dr. Dickerson also noted problems meeting the motor coordination, finger dexterity and manual dexterity for the job. AR570. Dr. Dickerson's background included a Masters and PhD in Rehabilitation Counseling Psychology. AR565. His work experiences included administering more than 700 VA Disability Evaluations and 200 Social Security Disability Evaluations. AR565. Dr. Dickerson also worked as a job placement interviewer and employment counselor where he tested job applicants to assess vocational and educational skills, and provided career counseling and job placement and requires use of the Dictionary of Occupational Titles and related vocational materials. AR566.

         Mr. Larson saw PA Jacobsen for a diabetes check on November 1, 2013. AR1448. The record noted that neuropsych testing had revealed some organic brain syndrome and Mr. Larson was applying for SSI. AR1448. Mr. Larson reported chronic back pain, anxiety, and sleep disturbances. AR1448. Examination revealed calf muscle cramps, thickening of the toenails, but the foot exam was otherwise normal. AR1449. He had no neurological deficits. AR1449. The assessment was Type 2 diabetes, uncomplicated and uncontrolled, and his A1C was high at 8.7. AR1449, 1451. Mr. Larson was provided insulin syringes for injections five times per day. AR1449.

         Mr. Larson saw PA Jacobsen on November 18, 2013, with complaints of low back and neck pain and numbness down to the left hand. AR1446. Mr. Larson reported feeling tired, and muscle spasms in the neck and back. AR1446. Examination revealed a BMI of 39.3, spasms in the left trapezius and rhomboid, with only the index finger tingling, improved from the prior week. AR1447. Hydrocodone was prescribed along with stretching exercises. AR1447.

         Mr. Larson saw PA Jacobsen on December 13, 2013, with ongoing chronic neck and back pain. AR1444. Mr. Larson had tried chiropractic treatment and massage with little relief and wanted to continue hydrocodone for pain. AR1444. Hydrocodone was continued and gabapentin added for his back pain. AR1445.

         7. Medical Evidence 2014

         Mr. Larson saw PA Jacobsen on March 24, 2014, for a diabetes check and reported neuropathy pain, tingling and burning sensation, and dizziness side affects from gabapentin. AR1440. Mr. Larson's A1C was high at 9.3, and his diabetes was assessed as controlled, but later described under HgbA1c control as not improving. AR1442. His hydrocodone for pain was continued. AR1440.

         Mr. Larson saw PA Jacobsen on June 27, 2014, for a diabetes check and reported home blood sugars running from 90-400, and continued chronic back pain. AR1437-38. His diabetes was assessed as uncontrolled, and his A1C was high at 9.6. AR1439, 1451.

         Mr. Larson saw PA Jacobsen on September 18, 2014, for a diabetes check and reported that he had seen Dr. L. Hanson at the Vein clinic for a free consultation and was told he needed surgery but it would cost him $2000. AR1434. Mr. Larson also reported having blurry vision at times. AR1434. Mr. Larson's assessment was Type 1 diabetes - uncontrolled, and his A1C was high at 8.5. AR1435, 1451. Hydrocodone was continued for his back pain. AR1434.

         Mr. Larson saw PA Jacobsen on December 24, 2014, for a diabetes check and his diabetes was assessed as Type 2 diabetes and uncontrolled, and his A1C was high at 8.9. AR1469, 1470.

         8. Medical Evidence 2015

         Mr. Larson saw PA Jacobsen on March 16, 2015, for a diabetes check and it was assessed at Type 1 diabetes - uncontrolled, and his A1C was high at 8.8. AR1467-1470.

         Mr. Larson saw PA Jacobsen on April 13, 2015, and continued taking hydrocodone for his back pain, and his BMI was 40.7. AR1464. Mr. Larson's diabetes was assessed as Type 2 diabetes and uncontrolled. AR1465.

         Mr. Larson saw PA Jacobsen on June 25, 2015, for right hip and low back pain. AR1481. Mr. Larson reported that he has always had hip pain, but it was worse the last six weeks, and the pain in his right hip radiates around to the side and down the leg. AR1481. He was seeing a chiropractor weekly. AR1481. Examination revealed obvious muscle spasm on his upper hip area. AR1482.

         Mr. Larson saw PA Jacobsen on July 31, 2015, with complaints of shortness of breath, and reported his blood sugars had been 190-300, which he attributed to being under a lot of stress. AR1479. Mr. Larson's diabetes was assessed as Type 1 diabetes - uncontrolled. AR1480.

         Mr. Larson saw PA Jacobsen on November 17, 2015, and his diabetes was assessed as Type 1 diabetes with hyperglycemia, long-term use of insulin. AR1475, 1477. His A1C was high at 9.1. AR1475, 1477. Mr. Larson also reported chest pain and shortness of breath for the last three months. AR1476.

         9. Medical Evidence 2016

         Mr. Larson's hydrocodone was continued in 2016 for his back pain. AR1473.

         Mr. Larson saw Krista M. Hoyme, D.O., at Sanford Health for his diabetes on February 9, 2016, and his A1C was high at 9.9 and his diabetes was assessed as Type 2 diabetes uncontrolled; he was referred to the Diabetic Education department. AR1501, 1504.

         On March 1, 2016, Mr. Larson's physical and mental status exam findings were unremarkable, including “alert, oriented to person, place and time, overweight, normal mood, behavior, speech, dress, motor activity, and thought processes.” AR1504. His assessment included Diabetes Type 2, uncontrolled. AR1504.

         Mr. Larson had a Doppler echo study on March 16, 2016, due to shortness of breath. AR1493. The study revealed normal left ventricular chamber size, mild left ventricular hypertrophy, normal LV systolic function, and LV ejection fraction of 60%. AR1493-95.

         Mr. Larson saw Dr. Hoyme on March 25, 2016, for his diabetes and chronic pain issues. AR1509. Mr. Larson reported struggling to remember his long-lasting and short-acting insulin on a regular basis, but did report checking his blood sugars. AR1509. Mr. Larson reported ongoing back pain and some muscle spasms and continued to take hydrocodone and naproxen for pain and weekly chiropractic appointments. AR1509. Examination revealed limited range of motion in his back due to pain, antalgic gait, and otherwise normal sensory and musculoskeletal exam. AR1509. His back was assessed as low back pain without sciatica and his diabetes continued uncontrolled. AR1509. His long-lasting diabetic insulin medication was changed, and his short-acting insulin was continued but less frequent. AR1509-10. Physical therapy was ordered for his back pain with a plan to wean him off of hydrocodone. AR1510. Mr. Larson had normal mental status findings, “alert, oriented to person, place, and time, normal mood, behavior, speech, dress, motor activity, and thought processes.” AR1509.

         Mr. Larson received 32 physical therapy treatment sessions between March 31, 2016, and October 18, 2016. AR1568. At his initial physical therapy evaluation, Mr. Larson was noted as “cooperative and motivated.” AR1618. He was discharged with instructions to continue home exercises, join a fitness center, and to get good shoes. AR1568. At discharge, Mr. Larson continued to have sacroiliac pain on the right at least 1/10 at rest and 4/10 with activity. AR1568. His pain was exacerbated by sitting, standing, and walking, and helped by relaxation techniques and rest. AR1568. Mr. Larson's goal had been to decrease his pain through therapy to a tolerable level and it was “partially met.” AR1568. Mr. Larson's ranges of motions were better following therapy, but still limited by pain. AR1569. Mr. Larson was doing very well walking after therapy with little to no trunk away and hip rotation, but still walking slowly. AR1569. Mr. Larson's goal to be able to perform activities with no sharp increases in pain that cause him to sit after 1-2 hours of activities was only partially met. AR1569. Mr. Larson's functional limitation at the completion of the therapy sessions was described as “at least 20 percent but less than 40% impaired, limited, or restricted.” AR1570. The intervention comments noted that Mr. Larson denied much change in his symptoms; same back and hip complaints. AR1570.

         Mr. Larson saw Dr. Hoyme again on April 26, 2016, and his A1C was 8.9 and his diabetes continued controlled and a referral to an endocrinologist was planned. AR1513, 1548. Mr. Larson also complained of pain in the finger on his left hand and edema in his legs with standing. AR1513. Mr. Larson had normal mental status exam findings, “alert, oriented to person, place, and time, normal mood, behavior, speech, dress, motor activity, and thought processes.” AR1513.

         On May 10, 2016, Mr. Larson saw Dr. Jonsson for follow up on uncontrolled hypertension. AR1515. Mr. Larson's hypertension had been very good lately, but his diabetes was out of control. AR1518. He had normal musculoskeletal and neurological exams, including normal range of motion. AR1518.

         Mr. Larson saw Marcio L. Griebeler, M.D., an endocrinologist, on May 24, 2016. AR1530. Dr. Griebeler described Mr. Larson's diabetes as a “combination of type 2 diabetes mellitus due to significant insulin resistance as well as pancreatic induced hyperglycemia as he had multiple episodes in the past.” AR1519. Mr. Larson reported blood sugars greater than 200 most of the time, his diet was not ideal, and he was using an insulin-to-carb ratio but was unsure how accurate his calculation was. AR1519. His A1C was 9.2. AR1519. Mr. Larson's insulin was increased and he was given information on carb counting and needed lifestyle changes to help better control his diabetes. AR1523. Dr. Griebeler noted, “[t]he answer for better control of [Mr. Larson's] diabetes is lifestyle changes.” AR1523.

         Mr. Larson saw Dr. Griebeler on June 21, 2016, and his blood sugars were improved, but still around the 200-300s and not at goal. AR1525. Mr. Larson's diabetes complications included positive semiquantitative microalbuminuria.[4] Mr. Larson's diabetes remained uncontrolled. AR1529.

         Mr. Larson had a sleep study on September 20, 2016, due to snoring, insomnia, possible sleep apnea with an Epworth score of 12. AR1498. The results showed severe obstructive sleep apnea with an AHI of 90.3 and desaturations to the 83% range, and a CPAP was refused by Mr. Larson at that time. AR1498. No. significant cardiac arrhythmias were shown. AR1498.

         Mr. Larson saw Dr. Hoyme on September 22, 2016, for right sided low back pain which radiates into the right leg along with weakness. AR1536. He reported his back pain was the same as always, but the leg pain and weakness were more intense than before. AR1536. Mr. Larson was receiving physical therapy and chiropractic treatments. AR1536. Examination revealed limited range of motion and extension in the back due to pain, and “[n]o significant palpable abnormalities, ” and intact muscle strength and testing in his lower extremities. AR1536. The assessment was acute bilateral low back pain with sciatica. AR1536. Hydrocodone and continued PT were prescribed. AR1537.

         10. Records Submitted to the Appeals Council

         Mr. Larson returned to Sanford Medical Center on November 10, 2016, due to his sleep apnea following his initial sleep study for a CPAP titration study. AR749. A fair titration of CPAP to pressure of 11 CM was determined to control Mr. Larson's severe sleep apnea. AR750.

         Mr. Larson saw Dr. Griebeler on January 9, 2017, for diabetes follow up. AR590. Mr. Larson's BMI was up to 42.9, and his last A1C from September was high at 8.7%, and his current blood sugars averaged 300. AR586, 590. Mr. Larson's diabetes continued to be uncontrolled with the current A1C abnormal at 8.6%. AR591. Dr. Griebeler noted that Mr. Larson had recently started on CPAP. AR591.

         Mr. Larson saw Dr. Hoyme on January 24, 2017, with worsening neck pain, and more pain in his hips since ending PT. AR593. Examination revealed a very distended abdomen and lower chest which Mr. Larson attributed to bloating from his metformin, and he declined further recommended workup due to financial reasons. AR594. Additional physical therapy was recommended for his neck and hip pain. AR594.

         11. State Agency Assessments

         Non-examining DDS consultant Kevin Whittle, M.D., opined residual functional capacity (“RFC”) on July 23, 2011. AR96-98. The claimant could lift and/or carry 20 pounds occasionally (1/3 or less of an 8-hour day) and 10 pounds frequently (1/3 to 2/3 of an 8-hour day), stand and/or walk about 6 hours, and sit a total of about 6 hours in an 8-hour work day; climb ramps, stairs, ladders, ropes, and scaffolds frequently; stoop, kneel, and crouch frequently. AR96-98. Exertional and postural limitations were “due to back pain.” AR97. “Claimant appears to overstate limitations.” AR96. “There is no indication that there is opinion evidence from any source.” AR98. The DDS experts in 2011 did not consider mental impairments at the initial level. AR82-89.

         Non-examining DDS consultant Gregory Erickson, M.D., affirmed Dr. Whittle's RFC opinion on March 6, 2012. AR108-10. Exertional and postural limitations were “due to back pain.” AR109. At the reconsideration level the DDS psychological consultant found none-severe affective disorder and personality disorder, so no mental RFC assessment was completed. AR107.

         Non-examining DDS consultant Dr. Whittle again reviewed Mr. Larson's file on April 1, 2015, and found that Mr. Larson had non-severe impairments of diabetes, other diseases of the blood and blood-forming organs, sleep related breathing disorders, and a severe impairment of his spine. AR897. Dr. Whittle stated that he gave “great weight” to the opinion of Brian K. Kidman, M.D., the consultative examining physician. AR899. Dr. Whittle found Mr. Larson could lift and/or carry 20 pounds occasionally (1/3 or less of an 8-hour day) and 10 pounds frequently (1/3 to 2/3 of an 8-hour day), stand and/or walk about 6 hours, and sit a total of about 6 hours in an 8-hour work day; climb ramps, stairs, ladders, ropes, and scaffolds, stoop, kneel, crawl, and crouch occasionally. AR900. Exertional and postural limitations were “due to chronic back and neck pain related to DDD/DJD. AR900. Dr. Whittle referenced some of Dr. Kidman's findings from his consultative exam regarding Mr. Larson's spine impairment, but did not mention that Dr. Kidman stated Mr. Larson would be unlikely to tolerate work that required him to be on his feet, or required any significant amount of bending, stooping, crouching, or “not be able to do much in the way of lifting because of back pain….” AR1459, 901.

         Non-examining DDS consultant James Barker, M.D., reviewed Mr. Larson's file on May 22, 2015. AR914-16. Dr. Barker also stated he gave Dr. Kidman's opinions from his CE exam “great weight.” AR914. Dr. Barker found Mr. Larson's spine impairment to be severe, he also found obesity to be severe, and he found an RFC identical to the RFC determined by Dr. Whittle. AR914-15. Dr. Barker also referenced some of Dr. Kidman's findings from his CE exam regarding Mr. Larson's spine impairment, but did not mention that Dr. Kidman stated Mr. Larson would be unlikely to tolerate work that required him to be on his feet, or required any significant amount of bending, stooping, crouching, or that Dr. Kidman stated that Mr. Larson would also “not be able to do much in the way of lifting because of back pain….” AR1459, AR915.

         Non-examining DDS consultant Stephanie Fuller, Ph.D., opined on March 8, 2012, that the claimant had non-severe affective and personality disorders resulting in “mild” restriction of activities of daily living; “mild” difficulties maintaining social functioning; “mild” difficulties maintaining concentration, persistence or pace; and no episodes of decompensation. AR106-07.

         Non-examining DDS consultant Jerry Buchkoski, Ph.D., opined on March 16, 2015, that Mr. Larson had severe anxiety disorder and severe affective disorder, resulting in “mild” restriction of activities of daily living; “moderate” difficulties maintaining social functioning; “moderate” difficulties maintaining concentration, persistence or pace; and no episodes of decompensation. AR897-98. Dr. Buchkoski found Mr. Larson was not significantly limited in eleven areas, and he was moderately limited in five areas including his ability to understand, remember, and carry out detailed instructions; maintain attention and concentration for extended periods; work in coordination with or in proximity to others without being distracted by them; and interacting appropriately with the general public. AR901-03. Dr. Buchkoski opined that Mr. Larson had some cognitive issues, with average overall intellectual functioning, able to function better if he learns things hands on rather than being told what to do, and able to function in settings that are routine and involve limited contact with the general public. AR903. Dr. Buchkoski stated that Mr. Larson was not significantly limited in his ability to get along with co-workers or peers. AR902. Dr. Buchkoski also stated that “He would likely function best in settings that involve limited contact with others.” AR903.

         Non-examining DDS consultant Doug Soule, Ph.D., opined on May 26, 2015, that Mr. Larson had severe anxiety disorder and severe affective disorder, and also found he had a severe organic mental disorder. AR912. He found these severe impairments resulted in “mild” restriction of activities of daily living; “moderate” difficulties maintaining social functioning; “moderate” difficulties maintaining concentration, persistence or pace; and no episodes of decompensation. AR912-13. Based on those impairments he found Mr. Larson had the identical findings and mental RFC as determined by Dr. Buchkoski and outlined above. AR916-18. Dr. Soule also stated that Mr. Larson was not significantly limited in his ability to get along with co-workers or peers, and also stated that “He would likely function best in settings that involve limited contact with others.” AR917.

         12. Consultative Mental Examination - Shelley ...


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