United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
TERRY I. ADELMAN, Magistrate Judge.
This is an action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for judicial review of the Commissioner's final decision denying Keith Williams' application for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401, et seq., and application for supplemental security income under Title XVI of the Act, 42 U.S.C. §§ 1381, 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's final decision is supported by substantial evidence on the record as a whole, it is affirmed.
I. Procedural History
On October 6, 2010, the Social Security Administration denied plaintiff Keith Williams' March 11, 2010, applications for disability insurance benefits (DIB) and supplemental security income (SSI), in which he claimed he became disabled on May 4, 2005, because of ruptured disc and rotator cuff, dizziness, and pain. (Tr. 87-88, 96-100, 148-58, 243.) At plaintiff's request, a hearing was held before an administrative law judge (ALJ) on October 11, 2011, at which plaintiff, his father, and a vocational expert testified. (Tr. 44-85.) On December 30, 2011, the ALJ issued a decision denying plaintiff's claims for benefits, finding plaintiff able to perform work as it exists in significant numbers in the national economy. (Tr. 23-38.) On April 2, 2013, the Appeals Council denied plaintiff's request for review of the ALJ's decision. (Tr. 1-5.) The ALJ's determination 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 generally that his severe impairments render him incapable of performing any substantial work. Plaintiff also contends that the ALJ erred by discounting the medical opinion of his treating psychologist, Dr. Lipsitz. Plaintiff requests that the final decision be reversed and that the matter be remanded for further consideration. For the reasons that follow, the ALJ did not err in her determination.
II. Testimonial Evidence Before the ALJ
A. Plaintiff's Testimony
At the hearing on October 11, 2011, plaintiff testified in response to questions posed by the ALJ and counsel.
At the time of the hearing, plaintiff was thirty-three years of age. Plaintiff stands five-feet, eight inches tall and weighs 185 pounds. Plaintiff is single and lives with his parents. Plaintiff's brother and family also live in the same household. Plaintiff has a ninth grade education and was currently making arrangements to obtain his GED. (Tr. 51-52, 65.)
Plaintiff's Work History Report shows that he worked as a cook, dishwasher, and stocker at fast food restaurants and grocery stores from 1993 to April 2009. In 1995 and 1996, plaintiff worked as a carpet cleaner. In 1997 and 1998, plaintiff worked delivering sod. From 1998 to 2003, plaintiff worked for a moving company, moving furniture. In 2003 and 2004, plaintiff worked for three months as a farm worker. (Tr. 281.) Plaintiff testified that he was terminated from his last job in 2009 for unknown reasons when he completed his ninety-day probation period. Plaintiff testified to a number of other short-term jobs from which he was terminated for unknown reasons or because of inadequate performance. (Tr. 53-57.) Plaintiff testified that he voluntarily left other jobs because of dissatisfaction or inadequate pay. (Tr. 57-60.)
Plaintiff testified that he is unable to work because of constant pain in his back and neck. Plaintiff testified that he underwent neck surgery, which initially helped his pain, but that he thereafter began having headaches. Plaintiff testified that his doctor advised him that additional surgery would "probably put [him] in a wheelchair." Plaintiff testified that the pain causes dizziness and aggravates his headache condition. (Tr. 60-63.)
Plaintiff testified that he experiences headaches once or twice a week - each lasting up to eighteen hours - and that they measure a level eight or nine on a scale of one to ten. Plaintiff takes medication for the condition and lies down for four or five hours. (Tr. 60-63, 70.)
Plaintiff testified that he also suffers from depression because he has to borrow money from others. Plaintiff testified that he stays in bed three or four days a week because of his depression. (Tr. 71-72.) Plaintiff testified that he sometimes has difficulty with memory and concentration. Plaintiff testified that he does not have trouble dealing with people. (Tr. 64-65.)
Plaintiff currently sees two doctors. He no longer regularly sees Dr. Litpsitz and was advised to see him when needed. Plaintiff testified that he takes medication for dizziness, headaches, and anxiety and experiences dizziness as a side effect. (Tr. 62-63.)
As to his exertional abilities, plaintiff testified that he has difficulty climbing stairs because of pain in his hips and can lift no more than ten pounds because of pain in his shoulder. Plaintiff testified to having no difficulty sitting. (Tr. 64.)
As to his daily activities, plaintiff testified that his mother makes him breakfast after which he sits and does GED-related tasks on the computer. Plaintiff testified that he occasionally goes to the library but usually stays at home. Plaintiff does not help much with the household chores but does his own laundry. (Tr. 65-66.) Plaintiff reads and does not watch a lot television. Plaintiff testified the he no longer drinks because of his medical issues. (Tr. 67-68.)
B. Testimony of Plaintiff's Father
Plaintiff's father, James E. Williams, Jr., testified at the hearing in response to questions posed by the ALJ and counsel.
Mr. Williams testified that plaintiff has lived at home for several years. Mr. Williams testified that, since his neck surgery in 2009, plaintiff has suffered from severe headaches and arm pain. Mr. Williams testified that plaintiff stops everything he is doing and lies down during his headache episodes, and quite often spends his day in bed. Mr. Williams testified that plaintiff also experiences depression, which he believes to be related to his pain. (Tr. 74-76.)
C. Testimony of Vocational Expert
Gary Weimholt, a private vocational rehabilitation consultant, testified at the hearing in response to questions posed by the ALJ and counsel.
Mr. Weimholt classified plaintiff's past work as a kitchen helper and fast food cook as medium and unskilled; as a van driver/helper as very heavy and unskilled; as a delivery person as light and unskilled; and as a rug cleaner as medium and semi-skilled. (Tr. 80.)
The ALJ asked Mr. Weimholt to assume a person of plaintiff's age, education, and past work experience, and to further assume the person able to perform light exertional work. The ALJ then asked the vocational expert to assume the individual was limited to only simple, repetitive tasks with occasional contact with supervisors, coworkers, and the public. Mr. Weimholt testified that such a person could not perform any of plaintiff's past work but could perform work as a cleaner/housekeeper, of which 6, 500 such jobs exist in the State of Missouri; as an inspector and hand packager, of which 7, 500 such jobs exist in the State of Missouri and 325, 000 nationally; and small parts and products assembler, of which 7, 500 such jobs exist in the State of Missouri and 325, 000 nationally. (Tr. 82.)
The ALJ then asked Mr. Weimholt to assume the same individual but that he would be absent from work four days a month because of his medical issues. Mr. Weimholt testified that such a person could not perform any work in the regional or national economies. (Tr. 82.)
Counsel asked Mr. Weimholt to assume the individual from the first hypothetical and to further assume the person to
often have deficiencies of concentration, persistence, or pace so they couldn't complete tasks in a timely manner - and by "often" I'm referring to at least several times during the week if not daily; in addition to that, that there would be frequent inability to - or inability to interact with others and maintain proper social conduct and avoid altercations[.]
(Tr. 83.) Counsel clarified that the person's deficiencies in concentration, persistence, or pace would affect at least twenty-five percent of their daily production. Mr. Weimholt testified that no jobs would be available for such a person. (Tr. 84.)
III. Educational and Vocational Records
On March 24, 1994, the Francis Howell School District summarized its staff assessment relating to plaintiff's school performance. Plaintiff was in the ninth grade and sixteen years of age. It was noted that plaintiff was in a combination of learning disorder classes, behavioral disorder classes, and regular classes but that such placement had not been successful because of poor attendance and work completion difficulties. Classroom observations showed plaintiff to have difficulty grasping new concepts at a normal pace, using reasoning and problem solving skills, making inferences and interpretations, responding appropriately to social situations, exhibiting age-appropriate self-help skills, assuming responsibility for his own work, and completing work on time. Plaintiff's academic skills were noted to be weak in the areas of basic reading, reading comprehension, math calculation, reasoning, and written language, with plaintiff's performance in such areas ranging from the third to sixth grade levels. Assessment of plaintiff's cognitive ability showed him to function in the low average to borderline range. Administration of the IPAT Depression and Anxiety Scale showed ...