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Murray v. Colvin

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

August 15, 2014

CHARLES MURRAY, Plaintiff,
v.
CAROLYN W. COLVIN, COMMISSIONER OF SOCIAL SECURITY, Defendant.

MEMORANDUM AND ORDER OF UNITED STATES MAGISTRATE JUDGE

TERRY I. ADELMAN, Magistrate Judge.

This cause is on appeal from an adverse ruling of the Social Security Administration. The suit involves Applications for Disability Insurance Benefits under Title II of the Social Security Act and for Supplemental Security Income under Title XVI of the Act. Claimant has filed a Brief in Support of his Complaint; the Commissioner has filed a Brief in Support of her Answer. The parties consented to the jurisdiction of the undersigned pursuant to 28 U.S.C. § 636(c).

I. Procedural History

On July 26, 2010, Claimant Charles R. Murray filed Applications for Disability Insurance Benefits under Title II of the Act, 42 U.S.C. §§ 401 et. seq. (Tr. 100-06) and for Supplemental Security Income payments pursuant to Title XVI of the Social Security Act, 42 U.S.C. §§ 1381, et. seq. (Tr. 107-11).[1] Claimant states that his disability began on October 15, 2008, as a result of history of left shoulder separation, enlarged heart, and high blood pressure. (Tr. 44). On initial consideration, the Social Security Administration denied Claimant's claims for benefits. (Tr. 44-47). Claimant requested a hearing before an Administrative Law Judge ("ALJ"). (Tr. 48). On October 26, 2011, a hearing was held before an ALJ. (Tr. 24-40). Claimant testified and was represented by counsel. (Id.). Vocational Expert John F. McGowan, Ed.D, also testified at the hearing. (Tr. at 36-39, 63-64). Thereafter, on December 22, 2011, the ALJ issued a decision denying Claimant's claims for benefits. (Tr. 7-20). After considering the attorney supplied medical evidence from the Family Care Health Center and the University Medical Center of El Paso, the Appeals Council on October 26, 2012 found no basis for changing the ALJ's decision and denied Claimant's request for review of the ALJ's decision. (Tr. 1-5, 96-97, 295-329, 330-39). The ALJ's determination thus stands as the final decision of the Commissioner. 42 U.S.C. § 405(g).

II. Evidence Before the ALJ

A. Hearing on October 26, 2011

1. Claimant's Testimony

At the hearing on October 26, 2011, Claimant testified in response to questions posed by the ALJ and counsel. (Tr. 24-36). At the time of the hearing, Claimant was fifty-three years old. (Tr. 26). Claimant completed part of the eleventh grade and never received a GED. (Tr. 26-27). Claimant stands at five feet five inches and weighs approximately 245 pounds. (Tr. 27). He is right-handed. (Tr. 36). Claimant testified that he smokes a package of cigarettes a day. (Tr. 29).

Claimant testified that he last worked as an over-the-road trucker. (Tr. 27). Some of the jobs required loading and unloading around fifty pounds. (Tr. 27). Claimant stopped working as a truck driver in 2008 when he reported being sick, and he could not make the loads on time so he was released. (Tr. 28). Claimant applied for and received unemployment benefits for twentynine weeks while looking for jobs. (Tr. 28).

Claimant testified that he injured his left shoulder in 2004 and reinjured the shoulder in 2010 while holding a hot water heater so a friend could bust a pipe. (Tr. 29-30). He experiences soreness and pain. (Tr. 30). Lifting things, pushing shopping carts, and reaching down to pick up things increases the pain. (Tr. 31-32). Claimant testified that propping a pillow under his arm and lying down alleviates the pain, and he takes these measures every few hours. (Tr. 32). He used to take Darvocet and tried Vicodin and Hydrocodone but the medications caused him to be sick to his stomach. (Tr. 33). Claimant has high blood pressure, and the medications prescribed have leveled out his high blood pressure. (Tr. 28-29). He started taking medication for high cholesterol two months earlier. (Tr. 29).

Claimant receives psychological treatment from a nurse practitioner, psychiatrist, and a therapist at the Family Care Center for his mental problems. (Tr. 30). Dr. Iqbal, the psychiatrist, sees him once a month and is trying to help him cope and be around people. (Tr. 31). Dr. Iqbal diagnosed him with post traumatic stress disorder caused by the accident in 2004. (Tr. 33). He has nightmares and flashbacks from the accident. (Tr. 34). Claimant started receiving treatment after his nurse practitioner referred him due to his anxiety. (Tr. 31). Claimant testified that the anxiety makes him feel like he does not want to do anything. (Tr. 31). Claimant testified that he experiences panic attacks whenever he goes to the store or is around people. (Tr. 34). He has crying spells every day. (Tr. 35).

2. Testimony of Vocational Expert

Vocational Expert John McGowan testified in response to the ALJ's questions. (Tr. 36-39). The ALJ asked Dr. McGowan to assume that

a hypothetical claimant, age 50 to alleged date of onset. It's been opined this hypothetical claimant can lift and carry 20 pounds occasionally, 10 pounds frequently; stand or walk for six hours out of eight; sit for six; can occasionally climb stairs or ramps, never ropes, ladders or scaffolds; reaching overhead is limited to none on the left non-dominant arm. And this hypothetical claimant should avoid concentrated exposure to extreme cold, hazards of unprotected heights, and vibration.
In addition this hypothetical claimant is able to understand, remember and carry out at least simple instructions and non-detailed tasks, can respond appropriately to supervisors and coworkers in a task-oriented setting where contact with others is casual and infrequent; should not work in a setting which includes constant or regular contact with the general public and should not perform work which includes more than infrequent handling of customer complaints.
Given those restrictions and those alone could this hypothetical claimant return to any past relevant work?

(Tr. 36-37). Dr. McGowan opined that such an individual could not perform past relevant work inasmuch as everything Claimant performed as a truck driver fell into the medium exertional level, and the hypothetical included light exertional level. (Tr. 37).

In response to the query regarding other work, Dr. McGowan confirmed that Claimant could not reach overhead on the left, and he has no restrictions necessary on handling, fingering, or feeling. (Tr. 37). Dr. McGowan testified that Claimant could perform routine type assembly work including a small parts assembler, a light exertional job with 3, 900 jobs in the region and 345, 000 nationally; and hospital products assembling, sealing plastic disposable products, with 450 jobs in the region and 26, 400 nationally. (Tr. 38).

Next, counsel asked Dr. McGowan to assume that the hypothetical individual "in addition to the limitations in the hypothetical question would have one to two excused absences per day" requiring him to leave the work station. (Tr. 38). Dr. McGowan opined that such individual could not perform competitive employment especially at the unskilled level. (Tr. 38-39).

3. Forms Completed by Claimant

In the Function Report - Adult, Claimant indicated he starts his day by taking blood pressure medication and pain pill and then eating a bowl of cereal. (Tr. 143). He then lies down and props his shoulder with a pillow, and he repeats this procedure all day. (Tr. 143).

III. Medical Records

Claimant went to Family Care Health Center on November 19, 2008 to establish care. (Tr. 204). He reported moving back to St. Louis from Arkansas and experiencing burning and itching of his right lower leg, hypertension, and locking up of his left shoulder. He has smoked a pack and half of cigarettes for thirty-three years. Robin Musselman, R. N.C. S., diagnosed Claimant with morbid obesity, hypertension, and tobacco abuse and prescribed Lisinopril. (Tr. 204).

On November 24, 2008, Claimant returned for treatment of his hypertension. (Tr. 203). Ms. Musselman noted Claimant has probable polycythemia vera and directed him to see Hematology at Connect Care. (Tr. 203). Ms. Musselman discussed smoking cessation and gave him two boxes of Nicoderm patches and encouraged him to lose weight. (Tr. 203).

In follow-up treatment for hypertension on December 29, 2008, Claimant reported doing well. (Tr. 198). Ms. Musselman discussed smoking cessation again at length. Claimant indicated that he would quit as soon as he received disability and could afford patches. Examination showed no decreased sensation in his left arm. (Tr. 198).

On February 26, 2009, Dr. Joshua Field at Washington University, Division of Hematology, evaluated his polycythemia on referral. (Tr. 212). Dr. Field opined that "the most likely cause of the patient's polycythemia is his potential obstructive sleep apnea and smoking may be contributing as well." Dr. Fields recommended decreasing his amount of cigarette use and undergo a formal sleep study. (Tr. 212).

On March 10, 2009, Claimant returned for a follow-up visit at Family Care Health Center for his hypertension. (Tr. 195). He reported being seen at Connect Care Hematology for possible polycemia. Claimant reported walking for exercise and having no shortness of breath. He has lost fifteen pounds and reported feeling better. Ms. Musselman discussed smoking cessation. (Tr. 195).

In the February 4, 2010 Family Care Health Center Progress Note, Claimant reported living with his sister and having difficulty getting money for his medications. (Tr. 192). He reported left shoulder pain and decreased range of motion. Ms. Musselman noted how he made a referral for Claimant to be treated by an orthopedic but he failed to go. Connect Care related his issue of polycythemia to his smoking and the need for a CPAP machine. Claimant reported smoking one package of cigarettes each day. He was prescribed Vicodin. (Tr. 192).

The April 12, 2010 of his left shoulder showed left acromioclavicular joint dislocation. (Tr. 180, 211). In the Family Care Health Center Progress Note, Claimant reported left shoulder pain and not being able to tolerate Vicodin and ...


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