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Rodney E. Beers v. Michael J. Astrue

March 30, 2011

RODNEY E. BEERS, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Terry I. Adelman United States Magistrate Judge

MEMORANDUM AND ORDER

This matter is before the Court under 42 U.S.C. §§ 405(g) and 1383(c)(3) for judicial review of the denial of Plaintiff's applications for Disability Insurance Benefits under Title II of the Social Security Act and for Supplemental Security Income benefits under Title XVI of the Act. The parties consented to the jurisdiction of the undersigned pursuant to 28 U.S.C. § 636(c).

I. Procedural History

On May 26, 2006, Plaintiff filed applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). (Tr. 89-97) Plaintiff alleged disability beginning July 31, 2005 due to rheumatoid arthritis. (Tr. 56, 89, 109) Plaintiff's applications were denied on September 21, 2006, after which Plaintiff requested a hearing before an Administrative Law Judge (ALJ). (Tr. 54-61) On June 19, 2008, Plaintiff appeared and testified at hearing before an ALJ. (Tr. 27-53) In a decision dated July 14, 2008, the ALJ determined that Plaintiff had been disabled since October 23, 2007, not July 31, 2005 as Plaintiff alleged. (Tr. 14-24) On August 24, 2009, the Appeals Council denied Plaintiff's Request for Review. (Tr. 1-3) Thus, the decision of the ALJ stands as the final decision of the Commissioner.

II. Evidence Before the ALJ

At the hearing before the ALJ, Plaintiff was represented by counsel. Upon examination by the ALJ, Plaintiff testified that he was 31 years old with a 10th grade education. Plaintiff did not complete the 11th grade. He worked as a corrections officer from 2000 to 2004 and as a self-employed construction worker in 2005. His duties included building decks, roofing, and performing concrete work. He had not worked since that job. Plaintiff also worked construction in 1998 and worked for Purcell Tire and Rubber in 1999 grinding old tread off tires. Plaintiff worked at the retread factory for one year. He stated that he lifted about 70 to 80 pounds, as he primarily lifted diesel truck tires. (Tr. 30-31)

Plaintiff further testified that he weighed 235 pounds and measured 6' 1". His weight increased since he stopped working. Plaintiff stated that he was no longer to perform work activities because it was "impossible." He denied having a conversation in December 2007 with Dr. Vintimilla regarding Plaintiff's ability to sit, lift, and perform other physical functions. Plaintiff testified that he woke up one day in 2005 feeling as though he broke both wrists. The pain then continued to move through his body. Plaintiff was then diagnosed with Rheumatoid Arthritis ("RA"). He stated that his ability to lift varied daily but that he could lift up to 10 pounds. On bad days he could not even lift a can of soda. Other days his wrists became so swollen that he was unable to tie his shoes or button his pants. Plaintiff testified that sometimes he could lift a can of soda, and sometimes he could lift a gallon of milk. While x-rays of Plaintiff's neck revealed evidence of arthritis, Plaintiff had not seen the results of x-rays of other parts of his body. (Tr. 32-34)

Plaintiff's attorney also questioned Plaintiff about his RA. Plaintiff stated that RA mostly affected his feet, hands, knees, hips, and shoulders. With regard to his feet, Plaintiff testified that some mornings he would wake up to excruciating pain in his feet. They felt as though his feet and ankles were broken, and they were red and swollen, with a burning sensation. The pain frequently lasted all day and required him to wear house shoes because he could not tie his tennis shoes due to swelling. Usually, the pain improved later in the day, until 1:00 or 2:00 p.m. Plaintiff further testified that the problems with his feet affected his ability to stand and walk throughout the day. On a good day, Plaintiff could be on his feet 1/2 hour to 1 hour before needing to sit down. On a bad day, Plaintiff was unable to be on his feet at all. His wife would help him to the couch and turn on the TV, where he spent the entire day. With regard to sitting, Plaintiff testified that he needed to switch positions because staying in one spot bothered him. He would also need to get up, stretch, and try to walk around. However, if he stayed up too long, his RA would bother him. (Tr. 34-36)

Plaintiff further testified that he experienced problems with his hands. On bad days, Plaintiff found it difficult to perform any detailed work such as bending his fingers and knuckles, tying his shoes, or driving with the steering wheel, which bothered his wrists. With regard to his hips, Plaintiff stated that when the RA affected his hips, he experienced difficulty walking and sitting. Plaintiff also testified that different joints were worse or better on different days. For instance, the pain could be in his fingers and knees on one day then in his shoulders the next. Plaintiff could not make any plans because he did not know how he would feel from day to day. He did not notice a pattern but did find that his joints hurt the next day from overuse. (Tr. 36-37)

Plaintiff previously quit smoking, but his arthritic symptoms did not improve. However, he felt better overall. At the time of the hearing, Plaintiff had been seeing Dr. Vintimilla, a rheumatologist. He had tried several medications. HUMIRA helped at first but then his body became used to it. Plaintiff was undergoing infusion treatment, which entailed running medication through Plaintiff's body for 5 to 7 hours via an IV. Plaintiff testified that he was scheduled to receive the treatment twice and that the treatment was to last for 6 months. He had recently started the infusion and did not yet know the effects. With regard to the HUMIRA, Plaintiff testified that he experienced side effects, which included upset stomach and fatigue. He gave himself HUMIRA injections once a week, and the side effects lasted two to three days after. Plaintiff stated that the medication did not change his ability to move around very much but did take the edge off the pain. (Tr. 37-40)

Plaintiff was taking methotrexate at the time of the hearing. That medication caused nausea and headaches, as well as elevated liver enzymes. Plaintiff underwent liver function testing at every doctor's appointment, usually every 1 or 2 months. He also took predinsone, which caused nausea. In addition, Plaintiff had to take medication for his bones, as the prednisone caused his bones to become brittle. (Tr. 40-41)

Plaintiff stated that he experienced a lot of pain and discomfort, which varied with different joints at different times. On a good day with medication, Plaintiff rated his pain as a 3 or 4 on a scale of 1 to 10. However, on a bad day his pain was a 9 or 10, and he just wanted to be left alone. Plaintiff lived in a mobile home with his wife, seven-year-old daughter, and four-year-old son. His pain made it harder to interact with his family or make plans with them. In addition, when Plaintiff was in pain, he had difficulty concentrating on anything. His wife worked outside the home. Plaintiff tried to help with some of the household chores such as straightening up the kids' rooms. He was unable to vacuum, sweep, or mop. On good days, he was able to do the dishes. Plaintiff could not describe a typical week. He testified that every week was different. One week he could have 3 or 4 good days, but during another week he could have no good days. He opined that he averaged 1 or 2 good days a week. He tried to prepare meals, and on a good day was able to fix something quick. He did not go grocery shopping or do yard work. His brother helped with those chores. He had a driver's license but did not drive very much. On a good day, Plaintiff would drive a block to the store, but typically his wife did the driving. (Tr. 41-46)

Plaintiff also testified that he had difficulty sleeping. He woke up numerous times during the night and felt tired during the day. Fatigue was also a symptom of RA. Plaintiff believed he could lift a 2-liter bottle of soda on average. During the day, he needed to lie down or sleep at least once and sometimes two or three times. (Tr. 46-47)

The ALJ then asked Plaintiff some additional questions regarding past employment. Plaintiff testified that he quit his job as a corrections officer to take a higher paying job in environmental restoration. He worked there from July 2004 to July 2005. Once his RA started to bother him, he began missing work and was eventually fired. (Tr. 47-48)

A Vocational Expert ("VE") also testified at the hearing. The ALJ asked the VE to assume a hypothetical claimant of age 28 on the onset date with 10 years of education and the same past work experience as the Plaintiff. The ALJ also added that the person could lift and carry up to 20 pounds occasionally and 10 pounds frequently; stand or walk for 6 hours in an 8-hour work day; sit for 6 hours; climb stairs and ramps occasionally; never climb ropes, ladders, or scaffolds; and avoid concentrated exposure to extreme cold and hazards of unprotected heights and vibrations. Given these restrictions, the VE testified that Plaintiff could not return to any of his past relevant work. However, the hypothetical individual could perform light work which included gate guard and cashier. (Tr. 49-50)

The ALJ then asked the VE to add a sit/stand option to the first hypothetical. The VE answered that the hypothetical individual could perform work as a gate guard and cashier, although the number of jobs in the State of Missouri and nationally decreased significantly. If the ALJ took away the sit/stand option but added lifting only 10 pounds occasionally and less than 10 pounds frequently; stand and walk 2 hours in an 8-hour day; and sit for 6 hours, the VE testified that the individual could work as a security surveillance system monitor and bench assembly worker. (Tr. 50-51)

For the final hypothetical, the VE looked at a Physician Statement completed by Maria Vintimilla, M.D., Plaintiff's Rheumatologist. Dr. Vintimilla opined that Plaintiff could sit 2 hours; could stand/walk less than 2 hours; needed to shift positions at will; could not lift repetitively; could lift less than 10 pounds frequently and occasionally; and was limited in upper and lower extremities with regard to pushing and pulling. (Tr. 261-62) In light of ...


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