United States District Court, E.D. Missouri, Northern Division
JAMES D. HEATHMAN, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER
TERRY I. ADELMAN, Magistrate Judge.
This is an action under 42 U.S.C. § 405(g) for judicial review of the Commissioner's final decision denying James D. Heathman's application for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401, et seq. All matters are pending before the undersigned United States Magistrate Judge, with consent of the parties, pursuant to 28 U.S.C. § 636(c). Because the Commissioner failed to consider relevant evidence of record, the final decision is not supported by substantial evidence on the record as a whole and is reversed.
I. Procedural History
On June 10, 2011, plaintiff James D. Heathman applied for disability insurance benefits (DIB) claiming he became disabled on January 1, 2004, because of heart problems and rotator cuff problems. (Tr. 165-71, 193.) Plaintiff subsequently amended his alleged onset date to October 14, 2005. (Tr. 184.) Upon initial consideration, the Social Security Administration denied plaintiff's claim for benefits. (Tr. 108, 110-14.) At plaintiff's request, a hearing was held before an administrative law judge (ALJ) on October 30, 2012, at which plaintiff and a vocational expert testified. (Tr. 31-97.) On December 7, 2012, the ALJ issued a decision denying plaintiff's claim for benefits, finding plaintiff to have last met the insured status requirements of the Social Security Act on December 31, 2008; and that vocational expert testimony supported a finding that, through such date, plaintiff could perform work as it existed in significant numbers in the national economy. (Tr. 8-25.) On April 26, 2013, upon review of additional evidence, the Appeals Council denied plaintiff's request for review of the ALJ's decision. (Tr. 1-6.) The ALJ's decision thus stands as the final decision of the Commissioner. 42 U.S.C. § 405(g).
In the instant action for judicial review, plaintiff claims that the ALJ's decision is not supported by substantial evidence on the record as a whole, arguing that the ALJ wholly failed to consider certain opinion evidence rendered by his treating physician, Dr. Bragg, which was relevant to his disability during the insured status period. Plaintiff also contends that the ALJ erred by failing to obtain testimony from a medical advisor to determine the date of disability onset. Plaintiff requests that the final decision be reversed and the matter be remanded for an award of benefits or for further consideration.
II. Testimonial Evidence Before the ALJ
A. Plaintiff's Testimony
At the hearing on October 30, 2012, plaintiff testified in response to questions posed by the ALJ and counsel.
At the time of the hearing, plaintiff was fifty-seven years of age. On October 14, 2005, the alleged onset date of disability, plaintiff was fifty years of age. Plaintiff stands five feet, eleven inches tall and weighs 195 pounds. Plaintiff is right-handed. (Tr. 36-37.) Plaintiff is married and has two children and three step-children, the youngest of which is twenty-one years old. (Tr. 37-38.) Plaintiff completed the twelfth grade in high school and received no additional training. (Tr. 39.)
Plaintiff's prior work consisted of auto body repair and restoring vehicles. Plaintiff continues to perform this work but for no more than eight hours a week. (Tr. 39-40.) Plaintiff testified that, in order to perform such work, a person must be able to weld, sand, and lift up to sixty-five pounds. Plaintiff testified that he last lifted the heavier weight required in 2008 or 2009. Plaintiff testified that he can currently lift up to twenty pounds and will get someone to help him if he needs to lift anything heavier for his work. (Tr. 42-44.)
Plaintiff testified that he applied for disability benefits in 2004 after he had two heart attacks. Plaintiff testified that he withdrew that application, however, because he was able to work and wanted to continue to work. Plaintiff testified that he could not presently work full time because of problems with his arms, shoulders, and back and because of numbness in his feet. Plaintiff testified that he currently works in the auto shop for about an hour to an hour and a half but then must go home and put his feet up. Plaintiff testified that he can no longer hold a paint gun. Plaintiff testified that he cannot drive for any period of time and has difficulty lifting. (Tr. 45-47.)
With respect to the period before his insured status expired, that is, on or before December 31, 2008, plaintiff testified that he was constantly tired and did not have the energy to perform work on a full time basis. Plaintiff testified that he needed to elevate his legs at least twice a day during this time and would experience pain and fatigued legs if he did not do so. Plaintiff testified that his level of fatigue has increased within the past couple of years. (Tr. 48, 65-66.)
Plaintiff testified that he also had sleep apnea during the relevant period but could not use a CPAP machine because of difficulties wearing the mask. Plaintiff testified that mold issues prevented him from using oxygen at night. (Tr. 48-49.)
Plaintiff testified that he has had arthritis in his right hand since he was twenty-one years of age and was not able use his right hand for auto body work. (Tr. 50-51.)
Plaintiff testified that he currently experiences low back pain that radiates to his left leg and causes numbness in his foot. Plaintiff testified that recent x-rays show arthritis in his back. Plaintiff testified that he also had three surgeries for hernia repair and underwent rotator cuff surgery in 2011 for issues he had with his shoulder since 2009. (Tr. 50-51.) Plaintiff testified that he currently has little pain in his shoulders and arms if he keeps his arms at his side but that the pain worsens with reaching. (Tr. 56.)
Plaintiff testified that he currently takes the same medication he took prior to December 31, 2008, including medication for blood pressure and cholesterol, Celebrex for arthritis, Nexium, aspirin, and occasional Prednisone for his back and shoulders. Plaintiff testified that Celebrex helps with his arthritis. Plaintiff testified to having recently been prescribed a muscle relaxant. Plaintiff testified that his medication causes him to feel tired. (Tr. 51-53.)
As to his current exertional abilities, plaintiff testified that he can sit for five minutes before needing to change positions. Plaintiff testified that he can stand for ten minutes and walk about one block. Plaintiff testified that he can lift no more than twenty pounds and has problems reaching outward and overhead with both arms. Plaintiff testified that problems with his left knee prevent him from kneeling but that he can stoop, crouch, and crawl. Plaintiff testified that these limitations were not "this bad" in 2008 and have gradually worsened. (Tr. 58-60.)
As to his exertional abilities in 2008, plaintiff testified that he worked five to six hours a day and could stand up to four hours at one time. Plaintiff testified that he has had trouble gripping with his right hand since 2004. (Tr. 66-68.)
As to his daily activities during the relevant period, plaintiff testified that he was lifting a lot more weight in 2008 and suffered hernias as a result. Plaintiff testified that he was able to mow the lawn and do house repairs but needed to rest afterward. (Tr. 60-61, 70.) Plaintiff testified that he napped twice a day in 2008 for about an hour and a half, and would be in bed by 7:30 p.m. if he did not take such naps. (Tr. 67.)
B. Vocational Expert Testimony
John F. McGowan, a vocational expert, testified at the hearing on October 30, 2012, in response to questions posed by the ALJ and counsel.
Mr. McGowan classified plaintiff's past relevant work as an auto body repairman as medium and skilled, and as an automotive painter as medium and semi-skilled. (Tr. 74-75.)
The ALJ asked Mr. McGowan to assume an individual limited to light work except with no overhead reaching; no more than occasional climbing of ramps and stairs; occasional balancing; and no climbing of ladders, ropes, or scaffolds. Mr. McGowan testified that such a person could not perform any of plaintiff's past relevant work but, with a sit/stand option, could perform work as a hospital products assembler, of which 1, 500 such jobs exist in the State of Missouri and 26, 400 nationally; small electrical parts assembler, of which 262 such jobs exist in the State of Missouri and 8, 028 nationally; and personal home health aide/companion, of which 3, 900 such jobs exist in the State of Missouri and 141, 000 nationally. (Tr. 75-77.)
The ALJ then asked Mr. McGowan to assume the same individual would have to alternate between sitting, standing, and walking every forty-five minutes at will, to which Mr. McGowan testified that the person could perform the jobs previously identified except for hospital products assembler. Mr. McGowan testified that such a person could also perform work as an electronic equipment final inspector, of which 410 such jobs exist in the State of Missouri and 21, 561 nationally. (Tr. 77-78.)
The ALJ then asked Mr. McGowan to assume the individual had limited grip in one hand, to which Mr. Gowan testified that the person could continue to perform work as a personal health aide/companion. (Tr. 78-79.) Mr. McGowan testified that if such a person could use their hands occasionally, he could perform work as a film processing counter clerk, of which 1, 042 such jobs exist in the State of Missouri and 414, 730 nationally; school bus monitor/children's attendant, of which 1, 020 exist in the State of Missouri and 79, 280 nationally; and lobby attendant/ticket taker, of which 800 such jobs exist in the State of Missouri and 21, 400 nationally. (Tr. 80-82.)
Counsel asked Mr. McGowan to assume that the same individual had to avoid concentrated exposure to cold, heat, high humidity, and wetness; avoid moderate exposure to solvents and cleaners, fumes, odors, gases, dusts, and chemicals; and avoid all exposure to cigarette smoke. (Tr. 84.) Mr. McGowan testified that such a person could continue to perform work as a counter clerk, lobby attendant, and children's attendant as such work is defined in the Dictionary of Occupational Titles. (Tr. 88-89.)
Counsel then asked Mr. McGowan to assume the same person needed to elevate his legs at seventy degrees for twenty percent of an eight-hour workday, to which Mr. McGowan testified that such a condition would preclude competitive employment. Mr. McGowan also testified that work would not be available for a person who needed two to three breaks a day, for thirty minutes to two hours each; or for a person who would miss work at least three days a month because of his impairments. Mr. McGowan testified that a person could possibly miss one day a month but may not be able to keep his job if such an absence occurred every month. (Tr. 90-91.)
III. Medical Records Before the ALJ
Plaintiff visited Dr. Thomas A. Bragg, D.O., on January 9, 2003, with complaints of stomach trouble, nightmares, and joint pain in the shoulders and elbows. Physical examination showed plaintiff to look tired but not to have any acute pain. Dr. Bragg diagnosed plaintiff with history of irritable bowel syndrome (IBS), anxiety, sleep deprivation, chronic arm and shoulder pain, gastroesophageal reflux disease (GERD), and gastritis. Plaintiff was prescribed Nexium, NuLev, and Ambien. Dr. Bragg noted that plaintiff may need to undergo upper endoscopy, sleep studies, and testing for rheumatoid disorders if the medication regimen was unsuccessful. (Tr. 344.)
During a general physical examination on October 16, 2003, plaintiff's extremities were noted to be "completely normal." Abdominal examination was likewise normal. Dr. Bragg prescribed Lexapro for chronic depression. (Tr. 342.)
Plaintiff visited Dr. Bragg on May 7, 2004, and reported being very tired and having leg pain while walking. Plaintiff reported recent chest pain while moving furniture, with such pain radiating to his left arm and left jaw. Dr. Bragg noted a cardiac CT profile performed that same date to show significant coronary atherosclerosis. Dr. Bragg diagnosed plaintiff with coronary artery disease (CAD) and instructed him to take aspirin. Plaintiff was referred to cardiology for an angiography. (Tr. 341, 366.)
Upon admission to Boone Hospital Center that same date, plaintiff was diagnosed with acute inferior myocardial infarction, and angioplasty stenting of the right coronary artery was performed. Plaintiff was discharged on May 9 and was instructed not to engage in heavy lifting or exercise for two days, and not to work for two weeks. (Tr. 398-402.) Plaintiff underwent stent placement in the left anterior descending coronary artery on May 19. Upon discharge, plaintiff was instructed to avoid heavy lifting or strenuous activity for the next week, and to resume normal activity thereafter. (Tr. 426-27.)
Plaintiff visited the Electrophysiology Clinic at the Missouri Heart Center on June 29, 2004, with complaints of fatigue, shortness of breath, dyspnea, and depression. Physical examination was unremarkable. Dr. Dan L. Pierce questioned whether such symptoms were ...