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Radel v. Saul

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

December 18, 2019

STEVEN J. RADEL, Plaintiff,
ANDREW M. SAUL, Commissioner of the Social Security Administration, Defendant.




         Plaintiff, Steven J. Radel, seeks judicial review of the Commissioner's final decision denying his application for social security disability benefits under Title II and Title XVI of the Social Security Act.[1]

         Mr. Radel has filed a complaint and has requested the court to reverse the Commissioner's final decision denying him disability benefits and to remand the matter to the Social Security Administration for an award of benefits or for further proceedings. The government requests the Commissioner's decision be affirmed.

         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 handling this matter pursuant to 28 U.S.C. § 636(c).


         A. Statement of the Case

         This action arises from plaintiff, Steven J. Radel's (“Radel”) Title II and Title XVI applications filed on February 25, 2016, alleging disability since October 1, 2015, due to a short right arm, deformed fingers on the right hand, mental illness, depression, anger and traumatic brain injury. AR11, 199, 203, 242, 257, 262.

         Mr. Radel's claim was denied initially and upon reconsideration. AR11, 155, 163, 170. Mr. Radel then requested an administrative hearing. AR11, 177.

         Mr. Radel attended an administrative hearing on June 4, 2018, before Administrative Law Judge (“ALJ”) Hallie Larsen. AR11, 70, 72. At the hearing, Mr. Radel was represented by Thomas Johnson, counsel other than the undersigned counsel. Following the hearing, ALJ Larsen issued an unfavorable decision on August 28, 2018. AR8, 11-23.

         At Step One of the evaluation, the ALJ found that Mr. Radel was insured for benefits through December 31, 2020, and that he had not engaged in substantial gainful activity (“SGA”) since October 1, 2015, the alleged onset of disability date. AR13.

         At Step Two, the ALJ found that Mr. Radel had severe impairments of major depressive disorder, generalized anxiety disorder, traumatic brain injury, and congenital deformity of the right upper extremity; finding that these medically determinable impairments significantly limited Mr. Radel's ability to perform basic work activities. AR14.

         The ALJ found that Mr. Radel also alleged additional impairments and the record showed that Mr. Radel had received treatment or been evaluated for other symptoms and complaints, but stated that the alleged impairments “caused only transient and mild symptoms and limitations, are well controlled with treatment, have not met the 12-month-durational requirement, or are otherwise not adequately supported by the medical evidence in the record.” AR14. The ALJ concluded “these alleged impairments do not constitute severe medically determinable impairments.” AR14. The ALJ stated, “These include, but are not limited to, the following: polysubstance abuse (in remission).” AR14.

         At Step Three, the ALJ found that Mr. Radel did not have an impairment that met or medically equaled one of the listed impairments. AR14. The ALJ found that Mr. Radel's mental impairments caused moderate limitations in understanding, remembering, or applying information, moderate limitations in interacting with others, moderate limitations with concentration, persistence or maintaining pace, and moderate limitations in adapting or managing oneself. AR15.

         The ALJ determined that Mr. Radel had the residual functional capacity (“RFC”) to perform:

medium work as defined in 20 CFR 404.1567(c) and 416.967(c) except the claimant can lift and/or carry 50 pounds occasionally and 25 pounds frequently. The claimant can stand and/or walk for 6 hours in an 8-hour workday with normal breaks and sit for 6 hours in an 8-hour workday with normal breaks. The claimant can frequently push and/or pull with the right upper extremity. The claimant can occasionally climb ladders, ropes, or scaffolds, and occasionally reach overhead and handle and finger with his right non-dominant upper extremity. The claimant is able to understand, remember and carry out short, simple instructions. The claimant is able to interact appropriately with coworkers and the general public on an occasional basis. The claimant is able to respond appropriately to work pressures in a usual work setting. The claimant is able to respond appropriately to changes in a routine work setting.


         The ALJ's subjective symptom finding was that Mr. Radel's medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, his statements concerning the intensity, persistence and limiting effects of his symptoms were not “entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.” AR19.

         The ALJ noted in her decision that the record contained global assessment of functioning (“GAF”) scores, citing Exhibit 1F, and gave those assessments minimal weight. AR20.

         The ALJ considered the opinion of consultative examiner Nicholas VenOsdel, M.D., who the ALJ noted had opined that Mr. Radel had limitations in his ability to finely manipulate with his hands and fingers due to his congenital abnormality of his right upper extremity, and limitations in his ability to lift and reach overhead with that extremity. AR20. The ALJ noted that Dr. VenOsdel opined that Mr. Radel had no limitations in lifting and carrying or with walking, standing, or sitting. AR20. Ultimately, the ALJ gave Dr. VenOsdel's opinion great weight. AR20. The ALJ stated that the consultant's exam was the only thorough physical exam in the record and was consistent with Mr. Radel's allegations. AR20.

         The ALJ also considered the opinions of the State agency psychological consultants, Doug Soule, Ph.D., and Jerry Buchkoski, Ph.D., who found no severe impairments and completed no RFC assessment and gave their opinions little weight. AR21. The ALJ noted Mr. Radel had complained of anger and depression affecting his ability to work and he had received therapy and counseling. AR21.

         The ALJ considered the opinions of the State agency medical consultants, James Barker, M.D., and John Lassegard, M.D., and gave them “some weight” because the consultants' opinions that Mr. Radel could perform light exertion work was inconsistent with Mr. Radel's allegations and the results of the physical consultative exam. AR20.

         At Step Four, based on her RFC determination, the ALJ found that Mr. Radel was not capable of performing his past relevant work.[3] AR21.

         At Step Five, the ALJ found Mr. Radel capable of adjusting to other work that existed in significant numbers such as laundry worker, DOT #361.685-010; usher, DOT #344.677-014; and page, DOT #353.367-022, relying on testimony from the vocational expert (“VE”). AR22. The ALJ noted the VE testified that regarding the upper extremity limits, her testimony was based on her professional experience. AR22.

         Mr. Radel timely requested review by the Appeals Council and submitted additional evidence dated October 23, 2018, from Tom Audet, C.R.C. AR64-65, 197. Specifically, the additional evidence was a consultative vocational report that Mr. Audet sent to Mr. Radel's attorney. AR54-65. In the report, Mr. Audet explained that he administered the Purdue Pegboard test due to Mr. Radel's upper right extremity congenital deformity. AR64. The test revealed scores in the 1st or 2nd percentile for every test involving Mr. Radel's right hand. AR64-65, 197.

         Mr. Radel also submitted Mr. Audet's curriculum vitae, which described Mr. Audet's work with the Social Security Administration and his testimony as a vocational expert in over 5, 000 cases. AR66-69.

         The Appeals Council denied Mr. Radel's request for review, making the ALJ's decision the final decision of the Commissioner. AR1-7. When denying Mr. Radel's request for review it stated that the result of the Perdue Pegboard test obtained on October 23, 2018, “does not relate to the period at issue” and “does not affect the decision about whether you were disabled beginning on or before August 29, 2018.” AR2. The Appeals Council also explained that Mr. Radel could file a new application for disability. AR2.

         B. Plaintiff's Age, Education and Work Experience

         Mr. Radel was born in July of 1965 and completed the 12th grade in 1984. AR199, 243. The ALJ found that Mr. Radel had past relevant work as a construction worker and a dump truck driver. AR21.

         C. Medical Evidence of Record

         1. Consultative Examination

         Mr. Radel was sent for a consultative physical exam performed by Nicholas VenOsdel, M.D., on December 17, 2016. AR488. Dr. VenOsdel noted allegations related to Mr. Radel's arm, depression, traumatic brain injury, and headaches. AR488-89. Mr. Radel was born with a congenital defect in his right arm due to thalidomide syndrome[4] resulting in a shortened right arm and syndactyly (webbed or conjoined digits) of his right fingers requiring surgical separation. AR488.

         Mr. Radel also has only three digits on the right hand and he reported that the tendon on the third digit occasionally gets stuck. AR488. Mr. Radel reported brain injuries, first from an automobile accident at age 6, and again when hitting his head on the bottom of a swimming pool at age 11. AR488. Additionally, Mr. Radel reported he had a history of depression but acknowledged that his medication was working well to control his symptoms. AR488. Mr. Radel also noted he had no history of musculoskeletal or joint pain. AR489.

         Dr. VenOsdel's exam revealed that Mr. Radel was well-developed, well-nourished, and in no acute distress. AR490. Mr. Radel admitted that he was currently working part-time at Hardee's and acknowledged he could dress and feed himself and perform chores such as sweeping, mopping, cooking, shopping, washing dishes and mowing the yard. AR489. Mr. Radel had no difficulty with ambulation. AR490. Mr. Radel's exam revealed he had significant shortening of the right upper extremity in both the humeral, radial and ulnar aspects of the arm and forearm; only three digits on the right hand with significant stunting contractures and shortening of the digits; clubbed nails of the digits; fingers could be fully flexed, but none could be fully extended; and muscle bellies of the right upper extremity were significantly smaller than the left extremity. AR490. Dr. VenOsdel explained there was no sign of amputation of the right hand and the condition was felt to be congenital abnormality. AR490. Overall, Mr. Radel had 5 out of 5 grip strength bilaterally. AR490.

         During a neurological examination of Mr. Radel, Dr. VenOsdel observed that Mr. Radel had 5 out of 5 motor strength in his upper and lower extremities and intact sensation. AR491. Dr. VenOsdel also found that Mr. Radel had difficulty with fine manipulation of his right hand with holding paper and positioning paper while writing with his left, dominant hand. AR491.

         Dr. VenOsdel's impressions regarding Mr. Radel's arm problem was that he did have objective findings consistent with limitations, Mr. Radel's three digits of the right hand were limited in their ability to function as they are shortened and contractures limit the ability to extend them, and objective findings demonstrated Mr. Radel had limitations in his ability to fine manipulate with his right hand. AR491. Dr. VenOsdel stated Mr. Radel also had limitations in his ability to lift and reach objects overhead because of his right upper extremity abnormality, and should not be expected to lift “heavy objects up over his head.” AR492. Dr. VenOsdel stated Mr. Radel had no limitations with “…basic handling of objects that [did] not require fine manipulation with hands or fingers.” AR492. Dr. VenOsdel's report included a definition key “occasionally, ” “frequently, ” and “continuously” but he did not use any of those terms to quantify the limitations he identified. AR492.

         Dr. VenOsdel found no limitations with respect to Mr. Radel's depression, traumatic brain injury (“TBI”) or alleged headaches. AR491.

         2. Treatment Records from Volunteers of America

         Prior to the relevant period, Mr. Radel was seen at Volunteers of America for an initial psychiatric evaluation on June 2, 2015, due to grief over the loss of his wife in September, 2014, who died due to alcoholism-induced liver failure. AR312. Mr. Radel rated his life as an 8 out of 10 and was diagnosed with an adjustment disorder with disturbance of emotions and conduct. AR312. Overall, Mr. Radel was assigned a GAF score of 75. AR312.

         On follow-up, Mr. Radel was seen again at Volunteers of America for therapy in July, 2015. AR314. Mr. Radel appeared more stable and at peace. AR314. Mr. Radel was working and also playing drums and bass and had been “jamming” with a few different musicians and he said he was putting a CD together with a band over the 4th. AR314. Mr. Radel's GAF score remained a 75. AR314.

         3. Avera Medical Group Records

         Mr. Radel was seen at Avera University Psychiatry by Xiaofan Li, M.D., on April 11, 2016, for an initial assessment for anxiety, anger, and impulsivity problems while he was an inmate in jail since March 17, 2016. AR463. He needed an initial evaluation due to a reported history of a TBI from a moving vehicle accident resulting in being in a coma for 3.5 weeks when he was young. AR463-65. Mr. Radel denied any recent hospitalizations and acknowledged that he was not taking medications. AR464. Mr. Radel denied significant depression but reported some anxiety, which the examiner stated may be related to him being in jail for burglary because he feel asleep in a lady's house while intoxicated. AR464. Mr. Radel was diagnosed with a TBI with anger and impulsivity, an anxiety disorder, and a prior substance use disorder (methamphetamines). AR465. Overall, Mr. Radel was found not to be a danger to himself or others and was started on Depakote. AR465. Mr. Radel returned to see Dr. Li on June 29, 2016. AR457. Mr. Radel reported some improvement of his anger and impulsivity with medication. AR458-59. Mr. Radel reported that he was still feeling depressed. AR457.

         On July 28, 2016, Mr. Radel saw Dr. Li again and reported an anger outburst and conflict with other inmates in his cell block. AR451. Mr. Radel also reported being depressed and his Depakote dosage was increased and Celexa prescribed. AR452.

         In September, 2016, Dr. Li saw Mr. Radel again for follow-up treatment. AR444-48. Mr. Radel reported that things were going well and that he may be transferred to a halfway house. AR444. Mr. Radel admitted that medication had helped his anger and impulsivity, as he denied any anger outbursts or aggression since July, 2016, but he felt his medication may be too sedating. AR444. Mr. Radel also denied any depression. AR444. All in all, Mr. Radel was “doing well” as he was cooperative with intact cognition and full affect. AR445-46.

         In February, 2017, Mr. Radel returned to Dr. Li and continued to be managed with outpatient treatment. AR495-97. Mr. Radel was “doing well, ” he was staying in a halfway house, attending an IOP program, and he reported his anger and impulsivity were improving, but he wanted a lower dose of his medication. AR496. Mr. Radel reported he slept from midnight to 7:00 a.m. and then slept a lot during the day and felt his medication may be contributing to his fatigue. AR495. Mr. Radel was instructed to return in three months. AR496-97.

         Mr. Radel returned to Dr. Li for treatment on May 17, 2017. AR534-36. Mr. Radel's mother provided a letter that informed Dr. Li that Mr. Radel had recently had an anger outburst at his mandatory anger management group and had been kicked out and she wondered about his medication compliance, and also about possible inpatient treatment. AR534. At his examination, Mr. Radel reported conflicts with a police officer, problems with his probation officer, and that he had stopped his Depakote two weeks prior because it made him very tired. AR534. Mr. Radel continued to take Celexa and reported feeling depressed for several months. AR534. Mr. Radel also reported a conflict with his parents but denied getting kicked out of his anger management group. AR534. Dr. Li concluded that Mr. Radel was not an imminent danger to himself and others and suggested continued outpatient treatment. AR536. Specifically, Dr. Li prescribed Risperidone and instructed Mr. Radel to discontinue using Depakote. AR536.

         Mr. Radel continued his psychiatric treatment at Avera University Psychiatry in July, 2017. AR528. Mr. Radel reported that Risperidone was working better than Depakote with few side effects. AR528. He explained it helped his anger and denied any major issues since his last visit. AR528. Upon examination, Mr. Radel had a good mood, full affect, intact cognition, and his insight and judgment were “limited to fair.” AR529. Mr. Radel continued to deny any depression and reported not much anxiety. AR528-29. Mr. Radel reported he was “doing much better” since he began taking Risperidone. AR530. Dr. Li found Mr. Radel was not an imminent safety concern and suggested that he return for follow-up treatment in two months. AR530. Mr. Radel was in “moral recognition therapy” and in after-care treatment, and his probation officer wanted him to attend anger management. AR528.

         In August, 2017, Mr. Radel returned to Dr. Li and denied any depression or anxiety, but reported feeling tired all the time. AR522. Mr. Radel noted that his medication was helping his mood and denied having any side effects from medication. AR522. Mr. Radel also denied any aggression and only noted minimum irritability. AR522. Mr. Radel reported he was working 20 hours a week on a painting job and also played in a band. AR522. Mr. Radel's insight and judgment were “limited to fair.” AR523.

         In September, 2017, Mr. Radel was seen for a general physical examination. AR558. Joseph Seurer, M.D., with the Avera Medical Group found Mr. Radel to be pretty healthy. AR558-62. Mr. Radel reported his mood was good due to his treatment and noted he was working to remodel a house for a friend. AR558. All in all, Mr. Radel's only concern was fatigue. AR558. Dr. Seurer ordered laboratory testing, which resulted in “reasonable” results that did not reveal a cause for fatigue. AR573.

         In November, 2017, Mr. Radel was seen by David Schlagel, M.D., with the Avera Medical Group for Psychiatry to establish care with a new psychiatrist for his depression and anger. AR550. Mr. Radel explained his medication had given him “a lot of benefit.” AR550. He noted he has had a definite improvement with his anger and irritability but not a complete resolution. AR550-51. Mr. Radel stated he is currently seeing a probation officer and is playing in the band, The Zero Men. AR551-52. Dr. Schlagel found Mr. Radel's symptoms to be under “pretty good” control and suggested continued medical management. AR552-53.

         In January, 2018, Mr. Radel returned to see Dr. Schlagel. AR545. Mr. Radel was doing well with no trouble with anger control. AR545-46.

         In April, 2018, Mr. Radel saw Dr. Schlagel again for medical management of his symptoms. AR540. Mr. Radel noted that he continued to do well, and Dr. Schlagel found his symptoms remained under “good control.” AR540-41. Upon examination, Mr. Radel was polite, friendly and cooperative and made good eye contact. AR540. Mr. Radel had a full affect and smiled easily. AR541. Mr. Radel was also fully oriented and had intact attention span, memory and judgment. AR541. Mr. Radel reported he had tried working at the Dollar Store doing overnight stocking but it was too physical. AR540.

         D. State Agency Physicians' Opinions

         Dr. James Barker, the state agency physician consultant at the initial level, found that Mr. Radel had severe “fracture of upper limb” and non-severe organic brain syndrome. AR106. Dr. Barker found Mr. Radel could occasionally lift 20 pounds and frequently lift 10 pounds, and that push/pull with the right upper extremity was limited to frequent. AR108-09. Dr. Barker also found Mr. Radel had unlimited ability to reach but was limited to occasional handling and fingering with his right hand. AR109-10. Dr. John Lassegard, the state agency physician at the reconsideration level, made identical findings. AR133, 135-36.

         Dr. Doug Soule, the State agency psychological consultant at the initial level, found that Mr. Radel's alcohol and substance abuse disorder and anxiety disorder were not severe impairments, so no psychological RFC assessment was completed. AR106-07. Overall, Dr. Soule found that Mr. Radel only had mild functional limitations. AR107. Dr. Jerry Buchkoski, the state agency expert at the reconsideration level, made the same findings. AR133-34.

         E. Testimony at the ALJ Hearing

         1. Mr. ...

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