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Dominguez v. Colvin

United States District Court, E.D. Missouri, Eastern Division

August 8, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


THOMAS C. MUMMERT, III, Magistrate Judge.

This 42 U.S.C. § 405(g) action for judicial review of the final decision of Carolyn W. Colvin, the Acting Commissioner of Social Security (Commissioner), denying the application of Reynaldo E. Dominguez (Plaintiff) for disability insurance benefits ("DIB") under Title II of the Social Security Act (the Act), 42 U.S.C. § 401-433, is before the undersigned United States Magistrate Judge by written consent of the parties. See 28 U.S.C. § 636(c).

Procedural History

Plaintiff applied for DIB in July 2010, alleging he was disabled as of January 18, 2003, because of the loss of three fingers on his left hand, mental distress, and emotional problems.[1] (R.[2] at 178-79, 231.) His application was denied initially and after a hearing held in April 2012 before Administrative Law Judge ("ALJ") Jhane Pappenfus. (Id. at 11-28, 36-98, 106, 113, 117-22.) After considering additional evidence, the Appeals Council denied Plaintiff's request for review, thereby effectively adopting the ALJ's decision as the final decision of the Commissioner. (Id. at 1-5.)

Testimony Before the ALJ

Plaintiff, represented by counsel, and John Grenfell, Ed.D., a vocational expert, testified at the administrative hearing.

Plaintiff testified that he was then thirty-four years old and has a twelfth grade education. (Id. at 45, 48.) He lives with his daughter and parents. (Id. at 59.) He received a "modified" high school diploma. (Id. at 48.) Such a diploma is given to children with learning disabilities. (Id.) He is learning disabled in reading and math. (Id. at 49.) He is at a second-grade level in those two subjects. (Id.) He also attended the Missouri Sheriff's Association and Training Academy. (Id. at 49-50.) He was able to pass the Academy tests if someone read the tests to him and he gave them his answers. (Id. at 50.)

Plaintiff has worked as a dry wall installer, builder of windows on an assembly line, supervisor at Home Depot, warehouse forklift driver, and driver of a sweeper truck. (Id. at 52-54.) He received unemployment benefits approximately four years ago.[3] (Id. at 46.) When receiving unemployment, he looked for warehouse or lumber jobs and, once, applied to McDonald's. (Id.)

On a typical day, Plaintiff gets dressed, watches his daughter go off to school, sits and watches television, and does a "little housework." (Id. at 57.) He washes his clothes and tries to wash some dishes. (Id.) When doing either chore, he can work for only five minutes before having to take a break. (Id. at 58.) Extremes of water temperature affect his left hand. (Id.) He usually sits in his bedroom because he does not like to be around a lot of people. (Id. at 59.) Twice a month, he visits a friend. (Id.) Before his hand was injured, he went out all the time and was very active. (Id. at 60.) Now, he gets in an argument with his parents or gets frustrated at least once or twice a week. (Id. at 60-61.)

Plaintiff has problems tying his shoes and buttoning his pants. (Id. at 61.) He can reach with only his right hand because of a left shoulder and hand injury. (Id.) He can "barely" grasp and pinch with his left hand. (Id. at 64.) He can push and pull only with his right hand. (Id.) He cannot lift anything heavier than ten to fifteen pounds, and can do that only occasionally. (Id.)

The pain in his left hand is constant. (Id. at 65.) The pain extends from the nubs of where his fingers used to be to his shoulder and neck. (Id.) He also has numbing and shocking feelings. (Id.) On a good day, the pain is a six on a ten-point scale. (Id. at 66.) Cold weather and temperature changes make it worse. (Id. at 66-67.) He cannot drive farther than five to six miles. (Id. at 67.) And, he has occasional tremors in his left hand. (Id.) These make it difficult for him to cut his food. (Id. at 67-68.)

Plaintiff injured his left shoulder when working at a hardware store in 2000. (Id. at 68-69.) When working at Home Depot, he worked in several different departments and was made a supervisor after four weeks. (Id. at 71.)

Plaintiff suffers from depression, post-traumatic stress disorder ("PTSD"), and flashbacks. (Id. at 70.) The latter come when he is sleeping. (Id.) He naps during the day. (Id.) Because of his depression, he has difficulties being around other people. (Id. at 72.) He gets upset and loses his "cool." (Id. at 73.) He cannot concentrate for longer than fifteen minutes. (Id.) Also, he has problems with mood changes and panic attacks. (Id.) He feels useless because he had been able to compensate for his borderline intellectual functioning by using his hands, but he no longer can. (Id. at 74.) He did not have PTSD before his accident. (Id.)

Asked by the ALJ to classify Plaintiff's past work, Dr. Grenfell replied that, under the Dictionary of Occupational Titles ("DOT"), Plaintiff's work as a yard supervisor was medium with a specific vocational preparation ("SVP") level of 7. (Id. at 77.) His job as a yard worker was medium with an SVP of 3, as were his jobs as a fork lift operator (referred to in the DOT as an industrial truck operator) and a parking lot sweeper. (Id. at 77, 78.) His job as a window maker on an assembly line was medium with an SVP of 2. (Id. at 77-78.) The job as a drywall worker was heavy with an SVP of 6; the job as a drywall mudder was medium with an SVP of 4. (Id. at 78.) These jobs did not have any specific transferrable skills. (Id. at 79.) The job of a yard supervisor had common supervisory skills, including maintaining simple records, that were transferrable. (Id.)

With his exertional limitations, Plaintiff will not be able to perform any of his past relevant work. (Id.) There are jobs, however, that "one-armed workers" who are unskilled can perform. (Id.) Three examples of such jobs include inspectors in the manufacturing field, operator of photocopy machines, and cashier in various settings. (Id. at 80-81.)

Dr. Grenfell further testified that there was no conflict between his testimony and the DOT. (Id. at 81.)

Asked by Plaintiff's attorney to state the reading level for the three examples he gave, Dr. Grenfell stated that the level for a cashier was a three, i.e., the person would have to read a variety of publications, including safety rules, write reports, and speak correct English. (Id. at 82.) Based on his forty years of experience, he found this DOT requirement to be inconsistent with the way the job of cashier is actually performed. (Id. at 85, 86.) Specifically, the DOT example of reading includes reading novels, newspapers, and journals; however, he has not found more than 5 to 2 percent of the population who read "manuals, novels, fiction." (Id. at 85-86.) The job of photocopy machine worker has a reading level of three; the job of inspector has a reading level of one. (Id. at 90.) Supervisory skills are not required for any of his three examples. (Id. at 91.)

Plaintiff would not be successful at any of the jobs cited by Dr. Grenfell if he worked at a 70 percent productivity level.[4] (Id. at 95.) Nor could Plaintiff perform the jobs if he had to be off task for ten minutes each hour. (Id. at 97.) If he could have only occasional contact with the public, the job of cashier would not be available. (Id.)

Medical and Other Records Before the ALJ

The documentary record before the ALJ includes forms Plaintiff completed as part of the application process, documents generated pursuant to his application, school records, records from health care providers, and assessments of his physical and mental functional capacities.

When applying for DIB, Plaintiff completed a Disability Report, listing January 31, 2007, as the date he stopped working because of his condition. (Id. at 231.) He explained on a separate form that he was fired from Home Depot in 2007 and then started work at Dependable Lawn. (Id. at 239.) He had to stop working there in 2008 due to the pain or stress. (Id. at 239.) Because, even with a work subsidy of 30 percent given to Dependable Lawn, [5] Plaintiff's earnings and length of employment did not qualify as an unsuccessful work attempt, it was recommended that his alleged disability onset date be amended to February 24, 2008, his last day of employment at Dependable Lawn. (Id. at 248.)

Plaintiff also completed a Function Report. (Id. at 292-99.) Asked to describe what he does during the day, he reported that he checks on his daughter after he gets up, eats meals, and stays in his room until she returns from school. (Id. at 292.) He then eats dinner and takes a nap. (Id.) It is hard for him to button anything, tie laces, or cut his food. (Id. at 293.) The only meals he prepares are sandwiches or microwaved foods. (Id. at 294.) He does the dishes, but has to stop after ten minutes, and his laundry, but has a hard time folding the clothing. (Id.) He can only drive a short distance because the vibration hurts his hand. (Id. at 295.) He does not shop because he does not like to be around people. (Id.) He sees friends approximately once a month. (Id. at 296.) His impairments adversely affect his abilities to lift, reach, walk, remember, concentrate, understand, climb stairs, complete tasks, follow instructions, use his hands, and get along with others. (Id. at 297.) He needs help with written instructions because he needs someone else to read them to him. (Id.) He does not handle stress or changes in routine well. (Id. at 298.) He wears a gel glove on his left hand. (Id.)

His mother completed a Function Report Adult - Third Party on Plaintiff's behalf. (Id. at 251-58.) She described his daily activities as taking a shower, eating meals, talking about not being able to work, and worrying. (Id. at 251.) She takes care of Plaintiff's daughter. (Id. at 252.) He does not have any problems with personal care tasks. (Id.) He sometimes needs to be reminded to take care of those tasks when he does not care how he looks. (Id. at 253.) He does light cleaning when he is able. (Id.) He has to have help if he engages in his former hobbies of hunting and fishing. (Id. at 255.) His impairments adversely affect his abilities to lift, concentrate, remember, use his hands, follow instructions, complete tasks, and get along with others. (Id. at 256.) He cannot read, but follows spoken instructions well. (Id.) He has to stop and rest for fifteen to twenty minutes after walking one-fourth mile. (Id.) He does not handle stress or changes in routine well. (Id. at 257.)

On a Disability Report - Appeal form completed after the initial denial of his application, Plaintiff reported that his depression and anxiety were worse since he had completed the original report. (Id. at 279.) He was not taking any medications because worker's compensation would not pay for them and he could not otherwise afford them. (Id. at 282.)

On an earnings report, annual earnings were listed for the years 1997 to 2008. (Id. at 214.) The lowest were $45, [6] in 2001; the highest were $25, 721, in 2006. (Id.) The next highest were $27, 403, in 1998, and $26, 919, in 2003. (Id.) Plaintiff worked at Home Depot from 2002 to 2007 and at Dependable Lawn in 2007 and 2008 (Id. at 217-18.)

Plaintiff's school records from the St. Clair School District include a three-year evaluation conducted when he was in the eighth grade and one conducted when he was in the eleventh grade. When in the eighth grade and fifteen years old, Plaintiff was given the Wechsler Intelligence Scale for Children - Revised ("WISC-R"). (Id. at 328-29.) He had a verbal intelligence quotient ("IQ") of 79, a performance IQ of 79, and a full scale IQ of 74, placing him in the borderline range of intellectual functioning. (Id.) He had a "relatively high score" on the Comprehension subtest, indicative of "a strength for practical knowledge and social judgment." (Id. at 329.) When in the eleventh grade and eighteen years old, Plaintiff was given the Wechsler Adult Intelligence Scale - Revised ("WAIS-R"). (Id. at 320-26.) He had a verbal IQ of 81, a performance IQ of 86, and a full scale IQ of 82, placing him in the low average range of intelligence. (Id.) He could "identify one and some two syllable words." (Id. at 324 (emphasis added).)

An Individual Education Program ("IEP") developed for Plaintiff when he was in the twelfth grade provided that he receive special education services in English, World Geography, and Math. (Id. at 337-38.) He was then functioning in the low average range of intellectual ability. (Id. at 338.) His weaknesses were in the areas of general knowledge, math memory, and reading experiences. (Id.) He was easily distracted and frustrated. (Id.)

The medical records before the ALJ are primarily of his treatment for the work accident or include reports of independent medical examinations ("IME") conducted pursuant to his resulting worker's compensation claim. Those records and reports are summarized below.

On January 18, 2004, Plaintiff was taken by ambulance to the emergency room at St. John's Mercy Medical Center after he amputated several fingers on his left hand when using a radial saw at Home Depot. (Id. at 576-86.) It was decided to transfer Plaintiff by air ambulance to Jewish Hospital in Louisville, Kentucky, for replantation of his fingers. (Id. at 579.) At Jewish Hospital, Plaintiff's left ring finger was able to be replanted; the index and long fingers were not. (Id. at 588-99.) The thumb was cleansed and debrided of nonviable tissue and debris. (Id. at 598.) Four days after admission, Plaintiff was discharged. (Id. at 599.)

After a few post-operative visits to the surgeon at Jewish Hospital, Plaintiff was referred to Paul R. Manske, M.D., in Missouri for further follow-up care. (Id. at 601-02, 625, 692-93.) When first seeing Dr. Manske, on February 12, Plaintiff reported continued pain at the base of the left ring finger and the small finger. (Id. at 625.) His wounds were healing well; however, he had hypersensitivity of the thumb, index, and long finger tips and phantom pain of the index and long fingers. (Id. at 626.) Dr. Manske recommended that Plaintiff be fitted with a splint to protect the healing site of the ring finger. (Id.) A therapist was to show him desensitization techniques and range of motion exercises.[7] (Id.)

Plaintiff saw Dr. Manske again on March 4. (Id. at 623-34, 691.) He had "early motion of the thumb, index, [and] long amputated digits" and was regaining motion in his small finger. (Id. at 623.) The range of motion in his ring finger was limited by the pins inserted for the replantation. (Id.) X-rays revealed that the ring finger's position was maintained. (Id.) Plaintiff's sutures were removed, and he was told he did not need to wear the protective splint once he was in a position where he would not sustain any direct trauma. (Id.)

The following month, on April 8, Dr. Manske removed the two pins in Plaintiff's ring finger. (Id. at 621-22.) Plaintiff was to continue wearing the protective splint when he was out in public and was to work with the therapist on range of motion and strengthening exercises. (Id. at 621.) Dr. Manske predicted that Plaintiff ...

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