United States District Court, D. South Dakota, Southern Division
STEVEN J. RADEL, Plaintiff,
ANDREW M. SAUL, Commissioner of the Social Security Administration, Defendant.
MEMORANDUM OPINION AND ORDER
VERONICA L. DUFFY UNITED STATES MAGISTRATE JUDGE
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.
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.
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. §
Statement of the Case
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.
Radel's claim was denied initially and upon
reconsideration. AR11, 155, 163, 170. Mr. Radel then
requested an administrative hearing. AR11, 177.
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.
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.
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.
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.
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.
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.
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.
noted in her decision that the record contained global
assessment of functioning (“GAF”) scores, citing
Exhibit 1F, and gave those assessments minimal weight. AR20.
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.
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.
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
Four, based on her RFC determination, the ALJ found that Mr.
Radel was not capable of performing his past relevant
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.
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.
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.
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
Plaintiff's Age, Education and Work Experience
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
Medical Evidence of Record
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 resulting in a shortened right
arm and syndactyly (webbed or conjoined digits) of his right
fingers requiring surgical separation. AR488.
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.
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.
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.
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.
VenOsdel found no limitations with respect to Mr. Radel's
depression, traumatic brain injury (“TBI”) or
alleged headaches. AR491.
Treatment Records from Volunteers of America
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.
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.
Avera Medical Group Records
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
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.
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.
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.
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.
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.
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.
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.
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.
January, 2018, Mr. Radel returned to see Dr. Schlagel. AR545.
Mr. Radel was doing well with no trouble with anger control.
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.
State Agency Physicians' Opinions
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,
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.
Testimony at the ALJ Hearing