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Leeper v. Colvin

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

September 22, 2014

THOMAS A. LEEPER, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM AND ORDER

ABBIE CRITES-LEONI, 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 Thomas A. Leeper's 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 not supported by substantial evidence on the record as a whole, it is reversed.

I. Procedural History

On May 22, 2007, plaintiff Thomas A. Leeper applied for disability insurance benefits (DIB) and supplemental security income (SSI), claiming he became disabled on January 1, 2005, because of depression, a shoulder injury, and back problems. (Tr. 52-55, 73, 395-98.) Upon initial consideration, the Social Security Administration denied plaintiff's claims for benefits. (Tr. 23, 42-46, 380.) A hearing was held before an Administrative Law Judge (ALJ) on November 6, 2007, at which plaintiff testified. (Tr. 255-79.) On November 29, 2007, the ALJ issued a decision denying plaintiff's claims for benefits. (Tr. 364-78.) After the Appeals Council denied plaintiff's request for review of the ALJ's decision (Tr. 3-6), plaintiff filed a civil action in this Court seeking judicial review. See Leeper v. Astrue, Cause No. 4:10CV935 LMB (E.D. Mo. 2010). On December 2, 2010, United States Magistrate Judge Lewis M. Blanton remanded the matter to the Commissioner on the Commissioner's motion, which represented that the Appeals Council would direct the ALJ upon remand to obtain testimony from a vocational expert to determine the effect of plaintiff's severe mental impairment on his ability to perform work in the national economy. ( See Tr. 329-30.)

Upon receipt of Judge Blanton's Order, the Appeals Council issued a separate Order remanding the matter to the ALJ for further proceedings. (Tr. 327.) Pursuant to this directive, the ALJ conducted a supplemental hearing on July 25, 2011, at which plaintiff and a vocational expert testified. (Tr. 406-39.) On October 4, 2011, the ALJ issued a decision denying plaintiff's claims for benefits, finding vocational expert testimony to support a conclusion that plaintiff could perform work as it exists in significant numbers in the national economy. (Tr. 287-300.) In a letter to plaintiff's counsel dated February 11, 2013, the Appeals Council stated that no reason existed for it to assume jurisdiction over the ALJ's adverse decision, and it informed counsel that the ALJ's decision was the final decision of the Commissioner. (Tr. 280-84.) This civil action seeks judicial review of that final decision. 42 U.S.C. § 405(g).

In this action, plaintiff claims that the ALJ failed to fully develop the record by limiting counsel's examination of plaintiff during the supplemental administrative hearing. Plaintiff also claims that the hypothetical question posed by the ALJ to the vocational expert did not include all of his limitations, including limitations as found by the ALJ in her written decision, and thus that the ALJ erred in relying on the expert's response to find plaintiff not disabled. Plaintiff requests that the final decision be reversed and that he be awarded benefits. For the following reasons, the matter is remanded for further proceedings.

II. Testimonial Evidence Before the ALJ

A. Hearing Held November 6, 2007

At the hearing on November 6, 2007, plaintiff testified in response to questions posed by the ALJ and counsel.

At the time of the hearing, plaintiff was fifty years of age. (Tr. 272.) Plaintiff lives in a house with his brother and his brother's three children, ages seven, eleven, and fifteen. Plaintiff attended college for two years. Plaintiff testified that he collected unemployment benefits for six months beginning in 2004 through approximately June 2005. Plaintiff testified that his brother handles all of the bills. (Tr. 258-59, 275.)

Plaintiff's Work History Report shows that plaintiff worked as a mover and as a painter in 1996. Plaintiff worked at UPS as a delivery driver/helper during the Christmas seasons in 1996, 1997, and 1998. From April to November 1998, plaintiff worked as a golf cart attendant at Florissant Golf Course. From April 1999 to September 2001, plaintiff worked as a warehouse worker/forklift operator at Centric Group. From November 2002 to December 2004, plaintiff worked as a warehouse worker at Mr. B's Pool Center. (Tr. 57, 74-75.) Plaintiff testified that he was laid off from his last job one week before Christmas, because of a decrease in business. (Tr. 268-69.)

Plaintiff testified that he suffered a broken shoulder and experienced problems with his hip and back as a result of an accident involving a boat trailer. Plaintiff testified that while the broken bones have healed, he continues to experience problems with arthritis that developed because of his injuries. (Tr. 262-63.) Plaintiff testified that his physical condition prevents him from lifting anything over thirty pounds five days in a row. (Tr. 271.) Plaintiff testified that he has received no treatment for his arthritis condition within the previous four or five years because of a lack of insurance. (Tr. 263.)

Plaintiff testified that his mother died from cancer in January 2005, which was shortly after he was laid off from his last job. Plaintiff testified that he had a brother who also died from cancer in 2000, at which time plaintiff had an anxiety attack. (Tr. 268-69.) Plaintiff testified that he was prescribed BuSpar during such time for depression. (Tr. 264-66.)

Plaintiff testified that he currently suffers from depression and experiences crying spells and sleep difficulties. Plaintiff testified that he averages a couple of hours of sleep every night. Plaintiff testified that he also has suicidal thoughts once a week. (Tr. 270, 276, 278.) Plaintiff testified that he has received no treatment for any mental condition since his anxiety attack in 2000, but believes he needs such treatment. (Tr. 264-66, 277-78.)

As to his exertional abilities, plaintiff testified that he can stand for fifteen to twenty minutes, walk a couple of blocks, and sit for one hour. (Tr. 275.)

As to his daily activities, plaintiff testified that he gets his brother's children ready for school, does some dishes and laundry, and then does nothing else during the day. Plaintiff testified that his brother and his brother's children do the cleaning and the cooking. (Tr. 270.) Plaintiff is able to bathe and groom himself. (Tr. 273.) Plaintiff does not go shopping, attend church, or do yard work. Plaintiff testified that he socializes with friends and family and goes to the park to watch his nieces and nephews play soccer. (Tr. 273-74.) Plaintiff testified that he drinks alcohol on the weekends. (Tr. 265.)

B. Hearing Held July 25, 2011

1. Plaintiff's Testimony

At the hearing on July 25, 2011, plaintiff testified in response to questions posed by the ALJ and counsel.

Plaintiff testified that he currently lives in a house with his brother and nephew. (Tr. 410.) Plaintiff testified that he applied for work three months prior to maintain eligibility for food stamps. (Tr. 414.)

Plaintiff testified that he cared for his brother in 1999 when his brother had cancer. Plaintiff testified that he cared for his mother in 2004. Plaintiff testified that he currently helps his other brother, with whom he lives, who had been in a coma until March 2010. Plaintiff testified that care for his brother includes cooking, doing his laundry, cleaning his room, shopping, and caring for his children when they visit. (Tr. 411-12.) Plaintiff testified that his activities also include watching television and visiting a friend who lives across the street. (Tr. 425, 429.)

Plaintiff testified that he began taking medication for depression in February 2011 and was not currently seeing a psychiatrist or psychologist for the condition. (Tr. 419.) Plaintiff testified that he constantly worries and sometimes has sleeping difficulties, because of his depression. (Tr. 426-27.) Plaintiff testified that he experiences crying spells a few times a month and that such episodes last about ten minutes. Plaintiff testified that his medication has helped his crying spells and somewhat helps to "take the edge off for a while, " but that he sometimes experiences dizziness as a side effect of his ...


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