Milliman v. Berryhill, Court File No. 16-cv-2008 (DSD/LIB)

Lance Gerald Milliman, Plaintiff, v. Nancy A. Berryhill,¹ Acting Commissioner of Social Security, Defendant.

Court File No. 16-cv-2008 (DSD/LIB)

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

June 29, 2017

REPORT AND RECOMMENDATION

Plaintiff Lance Gerald Milliman ("Plaintiff"), proceeding pro se, seeks judicial review of the decision of the Commissioner of Social Security ("Defendant") denying his applications for a period of disability, disability insurance benefits, and for supplemental security income. (Compl., [Docket No. 1], at 1). The matter was referred to the undersigned United States Magistrate Judge for report and recommendation, pursuant to 28 U.S.C. § 636 and Local Rule 72.1. The Court has jurisdiction over the claims pursuant to 42 U.S.C. §§ 405(g).

Both parties submitted motions for summary judgment, [Docket Nos. 16, 22], and the Court took the matter under advisement on the written submissions pursuant to Local Rule 7.2(c)(2). For the reasons discussed below, the Court recommends that Plaintiff's Motion for Summary Judgment, [Docket No. 16], be DENIED, and Defendant's Motion for Summary Judgment, [Docket No. 22], be GRANTED.

I. STATEMENT OF FACTS

A. Procedural History

On March 5, 2013, Plaintiff filed the present applications for a period of disability, disability insurance benefits, and social security income payments under Titles II and XVI of the Social Security Act, 42 U.S.C. §§401-434, 1381-1385. (See, Tr. 265-79).² Plaintiff alleged that he had become disabled on January 29, 2010. (Tr. 265, 269).³ The Commissioner approved Plaintiff's claim for social security income with a disability onset date of August 11, 2013, as opposed to the January 29, 2010, date alleged by Plaintiff, and affirmed that decision upon reconsideration. (Tr. 185-86, 192-93). The Commissioner denied Plaintiff's claims for a period of disability and disability insurance benefits on August 19, 2013, and on November 27, 2013; the Commissioner affirmed that denial upon Plaintiff's Request for Reconsideration. (Tr. 179-84, 209-15). Plaintiff subsequently requested a hearing before an Administrative Law Judge ("ALJ").

ALJ Jeffrey Hart (the "ALJ") conducted an administrative hearing on January 9, 2015, at which Plaintiff, as well as, an independent vocational expert, Norman A. Mastbaum ("IVE Mastbaum"), testified. (See, Tr. 74-103).

On April 15, 2015, the ALJ issued a decision denying Plaintiff's applications for benefits, in which he concluded that Plaintiff was not disabled within the meaning of the Social Security Act. (Tr. 7-21).⁴ Plaintiff sought review of the decision by the Appeals Council. (See, Tr. 1). OnMay 16, 2016, the Appeals Council denied Plaintiff's request for review. (Tr. 1-3). As such, the ALJ's April 15, 2015, decision became the final decision of the Commissioner. See, 20 C.F.R. §§ 404.981, 416.1481.

On June 20, 2016, Plaintiff filed the present action. (Compl. [Docket No. 1]).

B. Factual History

Plaintiff was born on August 12, 1958. (Tr. 265). He has at least a high school education and can communicate in English. (Tr. 318, 320). In his application for benefits, Plaintiff represented that his ability to work was limited by osteoarthritis, back injury, depression, and anxiety. (See, Tr. 120, 319).

In an undated Work History Report, Plaintiff indicated that he held various previous positions of employment including that of a dispatcher from January 2007 until June 2007, from January 2000 until January 2004, and for all of 1996; operations manager from January 1990 until January 1996 and from January 1976 until January 1989; truck driver from August 1997 until November 2005; and aircraft maintenance worker in the Unites States Air Force from August 1974 until August 1976. (Tr. 296). In an undated Disability Report, Plaintiff indicated that he worked as a truck driver or dispatcher from March 1997 until May 2007. (Tr. 320). In an updated Work Background Report received by the Social Security Administration on August 6, 2014, Plaintiff indicated that he worked as a property manager for James Getzbow from about June 2008 until October 2009, as well as, as a dispatcher and over the road truck driver for various truck driving companies from June 1999 until around June 2008. (Tr. 393).⁵

In a Function Report completed by Plaintiff on April 12, 2013, he indicated that he lacked the memory capacity to complete simple tasks, including personal care tasks and taking his medication; stayed in bed most of the day drinking coffee and waiting for his wife to get home; and lacked energy, in part, due to his inability to sleep longer than a few hours because of his anxiety. (Tr. 330-34) Plaintiff also wrote that he prepared his own simple meals, such as sandwiches, ramen noodles, and cereal; performed light cleaning and laundry once a week; went grocery shopping with his wife on a regular basis; and visited his children twice a month; however, Plaintiff wrote that he does not drive because he sometimes forgot where he was going. (Tr. 335). Regarding his ability to handle money, Plaintiff wrote that he was able to pay bills and count change, but he did not handle a savings account or use a checkbook. (Tr. 335). Plaintiff also indicated that he had no hobbies, but he sometimes read and watched television. (Tr. 336). Plaintiff also indicated that his alleged disability affected his ability to lift, squat, bend, stand, sit, remember, complete tasks, concentrate, understand, and get along with others. (Tr. 337). Plaintiff wrote that he could walk two or three blocks; could concentrate for short periods of time; and could generally follow simple, written instructions. Plaintiff also indicated that he did not handle stress well, was set in his ways, did not get along with authority figures, and found it hard to change. (Tr. 338).

Plaintiff completed another Function Report on November 7, 2013, which largely mirrors his April 12, 2013, Function Report but with some notable exceptions. (Tr. 358-65). In his November 7, 2013, Function Report, Plaintiff wrote that he was in constant back pain which limited his ability to do even the simplest tasks, that he slept very little due to his anxiety, and that he had trouble remembering to do certain tasks such as taking his medication. (Tr. 358-60). Plaintiff indicated that he no longer prepared meals; however, Plaintiff also indicated that he didlight cleaning and laundry twice a week. (Tr. 360). While Plaintiff indicated that he had stopped mowing the lawn due to leg pain and numbness, he also indicated that he drove a car. (Tr. 361). Moreover, Plaintiff indicated that he was able to pay bills, count change, and handle a savings account. He also indicated that he follows written instruction "fairly well," and his ability to follow spoken instructions depended on the situation. (Tr. 363). While Plaintiff continued to indicate that he did "not play well with others," he also indicated that he handled stress "fairly well." (Tr. 364).

At the administrative hearing, Plaintiff testified that the last time he worked was for between six to nine months in 2010 managing rental properties. (Tr. 76-77, 94).⁶ Plaintiff testified that he had some secondary education in the business field, but he, at least partially, learned the property manager position on the job. Plaintiff testified that the position was part-time for him because the property owner gave him "the run of everything," including not supervising him and letting him be "the property manager period." (Tr. 94). Plaintiff managed twenty single family homes, twenty-two mobile homes, and one eight-unit apartment building. (Tr. 94-95). Plaintiff also supervised three individuals. (Tr. 94-95). Plaintiff testified that his hours varied between twenty to forty hours a week for which he was paid $250 in cash per week. (Tr. 95-96). Plaintiff testified that his duties as property manager included collecting rent, preparing leases, and showing properties, as well as, "paperwork and legal stuff." (Tr. 95-96). At the same time Plaintiff was working as a property manager, Plaintiff testified he was also working as a truck dispatcher. (Tr. 98). Plaintiff further testified that his property manager job ended when he began arguing with the property owner over certain rental practices the owner employed which Plaintiff perceived as illegal. (Tr. 77-78). Plaintiff also testified that he was inthe U.S. Air Force in 1974 or 1975 when he was stationed in Laos, that he used to own tractor trailer trucks, and that he drove trucks for other companies, including Bjorkland Trucking, Inc., the latter being a position from which Plaintiff was fired three times. (Tr. 87-89, 96-97).

Plaintiff averred that he could no longer work because he had trust issues; that he wanted to stay at home; that he was opinionated; and that he didn't get along well with other people, including getting into arguments with judges. (Tr. 78-79). Plaintiff described a close quarters screaming argument he had with an unnamed judge in that judge's chambers. (Tr. 79). Plaintiff also described various legal actions he had pursued in state and federal court with satisfactory results. (Tr. 79-81).

Plaintiff testified that his neck and lower back issues would prevent him from working a full time job. (Tr. 82). Plaintiff clarified that his ability to stand or sit depended on the situation. (Tr. 82). Plaintiff was unsure if these issues prevented him from doing any work, but he thought they prevented him from doing any work for which he was trained. He testified that he could lift between twenty-five and thirty pounds, but that his back and neck were wearing out. Plaintiff also testified that he agreed with Dr. Norstand's orthopedic report. (Tr. 82-83).

Regarding his mental health impairment, Plaintiff testified that he generally did not get along with others especially authority figures, and he had anxiety. (See, Tr. 84-85). Plaintiff testified that he had been treated at Veterans Affairs for...