United States District Court, E.D. Missouri, Eastern Division
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 an application for Disability Insurance Benefits under Title II of the Social Security 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 December 7, 2009, Claimant filed an Application for Disability Insurance Benefits under Title II of the Act, 42 U.S.C. §§ 401 et. seq. (Tr. 180-66) alleging disability since September 20, 2009  due to residuals of neck injury, severe neck pain and immobility, residuals of two surgeries to neck and vocal cords, inability to bend, sit or stand for prolonged periods, anxiety, and shoulder problems. (Tr. 85). The application was denied (Tr. 85-89), and Claimant subsequently requested a hearing before an Administrative Law Judge ("ALJ"). (Tr. 95-96). On July 25, 2011 a hearing was held before an ALJ. (Tr. 28-80). Claimant testified and was represented by counsel. (Id.). Dr. Anne Winkler, the medical expert, and Vocational Expert John McGowan also testified at the hearing. (Tr.). (Tr. 33-56, 69-78). In a decision dated August 26, 2011, the ALJ found that Claimant had not been under a disability as defined by the Social Security Act. (Tr. 8-22). After considering the vocational analysis, Dr. Musich's report, and the Mental Residual Functional Capacity Questionnaire, the Appeals Council denied Claimant's Request for Review on October 17, 2012. (Tr. 1-5, 597-602, 752-84, 786-90, 793-98). Thus, the ALJ's decision is the final decision of the Commissioner.
II. Evidence Before the ALJ
A. Hearing on July 25, 2011
At the hearing on July 25, 2011, Claimant testified in response to questions posed by the ALJ and counsel. (Tr. 56-68). His date of birth is November 26, 1969, and at the time of the hearing, he was forty-one years old. (Tr. 56). Claimant stands at five feet seven inches and weighs approximately 197 pounds. (Tr. 56, 787). He completed middle school in Iraq and moved to the United States in 1996. (Tr. 57). He has never studied English. (Tr. 57). Claimant is a citizen of the United States and took the citizenship test in English. (Tr. 58). Claimant explained that Dr. Musich's notation finding he has a good command of English could have been directed to his wife who also was present during his assessment. (Tr. 59). Although he has a driver's license, Claimant testified that he seldom drives. (Tr. 64).
Claimant worked for Host International, Incorporated from 1996-98 washing dishes in the restaurant. (Tr. 60). He did not have to speak English, because he worked with a group of Iraqis so they spoke Arabic to one another. A friend interpreted to the supervisor for him. He worked for Harris Company washing dishes by hand. (Tr. 60). From 2002-2009, he worked at a company taking out the trash and packing books in boxes. (Tr. 61).
Claimant testified that he experiences pain in his arms 24 hours a day since September 20, 2009. (Tr. 62). If he carries a bottle of water for more than two minutes. he experiences pain. Claimant testified that he cannot stand for a long time. (Tr. 63). He can walk for ten to fifteen minutes. (Tr. 63).
His daily activities include staying at home and watching television. (Tr. 63). He stopped doing yard work before his first surgery. (Tr. 63). After his first surgery in 2007, he became depressed because he could not help his wife around the house or contribute to his family. (Tr. 65). Claimant testified that he has not had insurance since 2009. He was denied Medicaid because of his wife's income. (Tr. 65). His wife works from 8:00 in the morning until 4:00 in the afternoon. (Tr. 66). His wife drops off their infant and daycare, and he drives the other two children to school. (Tr. 66).
Claimant testified that he experiences numbness in his fingers. (Tr. 67). After his first surgery, he had blockage in his throat so he is not able to talk for a long period of time. (Tr. 68).
2. Testimony of Medical Expert
Medical Expert Dr. Anne Winkler testified in response to the ALJ's questions. (Tr. 33-56, 165-71, 742-48). Dr. Winkler listed cervical degenerative disease per surgery, vocal cord simulator because of a paralyzed vocal cord related to his cervical surgery, chronic obstructive lung disease with a low diffusion capacity, overuse of narcotics, cubital tunnel syndrome, migraine headaches, and chronic back pain as Claimant's medical impairments. (Tr. 34-35). Dr. Winkler opined that his impairments would not meet the findings required by any one listing of impairments or in combination. (Tr. 35). Based on the documentary evidence especially the medical records, Dr. Winkler found Claimant would be able to lift/carry twenty pounds occasionally, ten pounds frequently, and stand/walk six hours in an eight hour workday with no limitations on sitting. (Tr. 36). His postural limitations would include occasional stairs, no ladders, ropes, or scaffolding, frequent balance, kneel, crouch, stoop, and bend but no crawling. Dr. Winkler found he could never reach overhead but otherwise he could frequently reach, finger, feel, and handle. He has no visual or communicative limitations. (Tr. 36). His environmental limitations would include no unprotected heights; moderate or less exposure to dust, fumes, odors, or gases; and avoid concentrated exposure to cold wetness and humidity. (Tr. 37).
Dr. Winkler testified she found Dr. Wilkey the orthopedic surgeon who performed the two surgical fusions, to be persuasive on documentation of impairments and the orthopedist's assessment. (Tr. 37). The ALJ noted the difference of opinion between Dr. Wilkey and Dr. Musich, an independent medical examiner. Although Dr. Musich included some restrictions relating to no driving or operating commercial vehicles, Dr. Winkler opined that the documentary evidence did not support such limitations inasmuch as Claimant did not have any additional trauma to his spine after December 26, 2006 after the surgery. Dr. Winkler noted that Dr. Musich failed to note the normal imaging results and opined that she was a little surprised by some of his limitations. (Tr. 37). The ALJ noted how Dr. Musich included a limitation to basically look straight ahead, and Dr. Winkler opined nothing in the medical records suggested that there would be such a limited range of motion that he would not be able use his neck. (Tr. 38). Dr. Winkler opined that the medical evidence did not warrant the finding that he could not tilt his head downward to look at a keyboard, desk, or bench. (Tr. 38). Although he has some decreased range of motion, Dr. Winkler did not see support in the record support showing he could not look with his eyes downward and his neck titled. Dr. Winkler found the record supported some decreased range of motion turning his head side to side. (Tr. 39).
Dr. Winkler testified she could not confirm the presence of cubital syndrome or medial epicondylitis, because there is no physical examination or EMG testing but only a potential diagnosis. (Tr. 40). Dr. Winkler explained cubital tunnel syndrome is initially treated conservatively with NSAIDs and an elbow pad if it does not resolve in surgery so she believed it would not normally be an impairment lasting twelve months or longer. (Tr. 41).
Dr. Winkler testified that there were references in the medical records noting concerns that Claimant was still taking narcotics at a time when it would not be expected, because the narcotics were for post-surgical pain. (Tr.42). She further explained how some treating doctors felt that Claimant's demeanor seemed excessive in terms of exaggerating his symptoms, such symptoms would not normally require any narcotics but Claimant was still requesting the narcotics be prescribed. For example, Dr. Winkler cited how Dr. Shelton released Claimant from his care because testing had shown hydrocodone and skelaxin, and Dr. Shelton had been prescribing percocet. (Tr. 42). Dr. Winkler explained how percocet is oxycodone and considered a stronger narcotic than hydrocodone, and Claimant should only have one physician in charge of prescribing narcotics at a time. (Tr. 43). She opined that when the urine drug test revealed percocet there should not have been hydrocodone as well. The results of the urine drug test suggested there might be an issue with the use of narcotics, and so Dr. Shelton suggested there was not an appropriate following of the narcotics contract as required. (Tr. 43). Dr. Shelton testified that Skelaxin is a muscle relaxer and ordinarily is not sedating for the person taking it. (Tr. 43).
In response to counsel's question about the limitations he has from his COPD and moderately reduced breathing, Dr. Winkler not light activity so lifting, carrying, and standing as well as exposure to the elements such as cold, wet, and humidity, and fumes. (Tr. 45). Dr. Winkler explained how Claimant had signed a narcotic contract so Dr. Shelton felt that Claimant was taking medications he had not prescribed so Claimant was fired contractually because of lack of compliance. (Tr. 46). Dr. Winkler testified that oxycodone can cause drowsiness and is rarely used with medial epicondylitis ro cubital tunnel syndrome. (Tr. 47). She further testified that there is no evidence indicating Claimant had such side effects from narcotic pain medications. (Tr. 46-47).
With respect to Dr. Musich's finding Claimant cannot do cervical positioning for a prolonged period of time, Dr. Winkler indicated this finding to be a little surprising inasmuch as Dr. Wilkey's 2010 assessment did not show any significant decrease in range of motion. (Tr. 48). She explained that is why she felt there could be some neck mobility and would not expect somebody with neck surgery to be so limited that he would not be able to bend, tilt, and rotate his neck at least fifty percent on a prolonged basis. (Tr. 49). Dr. Winkler noted how Dr. Wilkey, the treating surgeon did not indicate a decreased range of motion and muscle spasms but instead found a much improved range of motion. (Tr. 50). Dr. Winkler explained how range of motion is somewhat subjective depending on patient cooperation. She explained how muscle spasms show the muscle is sore and tight. (Tr. 50). Dr. Winkler opined muscle spasms would not interfere with Claimant's ability to look down for long periods. (Tr. 51). Dr. Winkler noted how Dr. Wilkey found in his assessment that Claimant could do light duty. (Tr. 53).
3. Testimony of Vocational Expert
Vocational Expert Dr. John McGowan, a retired vocational counselor, testified in response to the ALJ's questions. (Tr. 69-78, 162-63). Dr. McGowan described Claimant's work background over the past fifteen years as including four laborer jobs and two dishwasher jobs. (Tr. 71). Dr. McGowan noted that one the documents contains a good job description of the large baling machine operator job. (Tr. 71). Dr. McGowan cited the dishwasher job at the medium exertional level as having transferrable skills; the large mangling machine operator at the heavy exertional level and unskilled; industrial truck operator/forklift operator or hi/lo operator with no transferability of skills. (Tr. 72).
The ALJ asked Dr. McGowan to assume
a hypothetical person who is age 41 and who is illiterate in English and cannot speak English. I'd like you to assume a person with a work background you've just identified. Please assume that person is limited to light work not requiring lifting/carrying more than 20 pounds. That person should not climb ladders, ropes or scaffolding... no reaching overhead. Could such a person perform any kind of work that exists throughout the national economy and in the region of Missouri and in the St. Louis Metropolitan statistical area?
(Tr. 72-2). Dr. McGowan responded he has no transferability from the vocational point of view. Dr. McGowan cited unskilled jobs at the light exertional level inasmuch as such jobs do not have a requirement of speaking. (Tr. 73-74). Dr. McGowan listed a hospital products assembler, plastic materials with 450 jobs in the metropolitan area and 26, 400 nationally, small parts assembler with 1, 850 in the metropolitan area and 345, 000 nationally, and plastic products inspector/hand packager with 900 in the metropolitan area and 76, 650 nationally. (Tr. 74).
The ALJ next asked Dr. McGowan to assume "that the person cannot perform any work requiring tilting the head upwards or downwards or rotating the head to the side?" Dr. McGowan opined such limitation would preclude a person from being able to perform the jobs he cited. (Tr. 74). The ALJ asked if a person could perform any jobs just by looking straight ahead based on Dr. Musich's finding. (Tr. 75). Dr. McGowan opined that he did not know of any job a person could perform with such limitation. (Tr. 75).
Next, the ALJ asked Dr. McGowan to assume the same hypothetical person but adding the following:
the person can lift and carry up to 20 pounds occasionally and 10 pounds frequently. The person can stand and walk six hours total of an eight-hour workday and there's no limit on sitting. The person can occasionally climb stairs. That person should never climb ropes, ladders or scaffolding.
The person can frequently balance, kneel, stoop and crouch. The person should never crawl and the person should never reach overhead. The person also should not work at unprotected heights and that person is limited to work at unprotected heights and that person is limited to work with moderate exposure to dust, fumes, odors, and gases.
The person cannot have concentrated exposure to cold, wet or humidity. If you assume all of those things, can such a person perform any kind of work that exists throughout the national economy and in Missouri and in the St. Louis Metropolitan statistical area?
(Tr. 75-76). Dr. McGowan questioned if this hypothetical was substantially different that the first one except for going into more detail so his answer would remain the same. (Tr. 76).
The ALJ asked for Dr. McGowan to assume the same individual as the previous question but adding the following:
The person is limited to light work, no climbing ladders, ropes, scaffolds, no reaching overhead. Assume that the person has difficulty grasping objects because of numbness in two fingers on each hand and has problems manipulating objects and grasping objects. Can such a person perform any kind of work that exists in the national economy?
(Tr. 76). Dr. McGowan responded no inasmuch as to perform sedentary work, an individual must have good use of his hands. (Tr. 76). He explained that all of the work administratively noticed and commonly done in the national economy as light work involves manipulation with both hands. (Tr. 77). Although Dr. McGowan testified that such individual could not work as a small parts assembler with that limitation, he still believed that such individual could work as a parking lot attendant inasmuch as such job does not require grasping and the use of hands. (Tr. 77). Dr. McGowan noted how there are 180 jobs in the metropolitan area and 13, 700 nationally. (Tr. 78).
4. Forms Completed by Claimant
In the Disability Report - Adult, Claimant reported working as a laborer from April 2002 through September 2009 five days a week, eight hours a day. (Tr. 233). He responded no to the question asking if he had received treatment from a doctor or other health professional for any mental condition. (Tr. 235).
In the Work History Report, Claimant reported working as a laborer/machine operator from April 2002 through December 2009 six days ...