United States District Court, E.D. Missouri, Eastern Division
COREY M. RICHERSON, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER
JOHN A. ROSS, District Judge.
This is an action under 42 U.S.C. § 405(g) for judicial review of the Commissioner of Social Security's final decision denying Corey Richerson's ("Richerson") application for disability insurance benefits pursuant to 42 U.S.C. § 423 and supplemental security income ("SSI") pursuant to under 42 U.S.C. § 1382.
On March 25, 2010, Richerson protectively filed applications for disability insurance under Title II of the Social Security Act, 42 U.S.C. §§ 401, et seq. (Tr. 136-42), and for supplemental security income benefits under Title XVI of the Act, 42 U.S.C. §§1381, et seq. (Tr. 130-35). The Social Security Administration ("SSA") denied Richerson's claims on June 25, 2010. (Tr. 74-78) He filed a timely request for a hearing before an administrative law judge ("ALJ") on August 19, 2010. (Tr. 81) Following a hearing on May 26, 2011 (Tr. 28-63), the ALJ issued a written decision on December 21, 2011 upholding the denial of benefits. (Tr. 12-27) Richerson requested review of the ALJ's decision by the Appeals Council. (Tr. 6) On January 15, 2013, the Appeals Council denied Richerson's request for review. (Tr. 1-5) Thus, the decision of the ALJ stands as the final decision of the Commissioner. See Sims v. Apfel , 530 U.S. 103, 107 (2000). Richerson filed this appeal on March 14, 2013. (Doc. 1) The Commissioner filed an Answer. (Doc. No. 9) Richerson filed a Brief in Support of his Complaint. (Doc. No. 17) The Commissioner filed a Brief in Support of the Answer. (Doc. No. 20) Richerson has not filed a Reply Brief in Support of his Complaint.
II. Decision of the ALJ
The ALJ determined that Richerson met the insured status requirements of the Social Security Act through December 31, 2014, and had not engaged in substantial gainful activity since June 17, 2009, the alleged onset date of disability. (Tr. 17) The ALJ found Richerson had the severe impairments of seizure disorder and major depressive disorder, but that no impairment or combination of impairments met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id.)
After considering the entire record, the ALJ determined Richerson had the residual functional capacity ("RFC") to perform a full range of work at all exertional levels but with the following non-exertional limitations: "the claimant is unable to climb ladders, ropes or scaffolds. He is to avoid all operational control of moving machinery, working at unprotected heights, flames, working around open water, and the use of hazardous machinery. The claimant is limited to work that only involves simple, routine, and repetitive tasks in a low stress job defined as requiring only occasional decision making [sic] only occasional changes in the work setting." (Tr. 18)
The ALJ found Richerson capable of performing past relevant work as a store laborer and packager, which did not require the performance of work related activities precluded by his RFC. (Tr. 22) Thus, the ALJ concluded that Richerson had not been under a disability as defined in the Social Security Act, from June 17, 2009, through the date of the decision. (Id.)
Richerson appeals, contending that the ALJ failed to properly consider Listing 11.03, and specifically failed to affirmatively quantify the frequency and duration of his seizure activity as required by 11.00A. Richerson also contends the ALJ failed to properly consider opinion evidence, and failed to properly consider credibility. The Commissioner maintains that the ALJ's decision was supported by substantial evidence on the record as a whole.
III. Administrative Record
The following is a summary of the relevant evidence before the ALJ.
A. Hearing Testimony
The ALJ held a hearing in this matter on May 26, 2011. The ALJ heard testimony from Richerson and J. Stephen Dolan, a vocational expert.
1. Richerson's testimony
Richerson was 35 years old at the time of the hearing. He testified as follows. He was married with four children, ages 16, 13, 8 and 5, and living with his parents in their home. (Tr. 36) He has not had a driver's license since November 2006, when it was suspended following a motor vehicle accident. (Id.) He graduated from high school and at the time of the hearing was enrolled in an accounting program at St. Louis Community College, where he attended classes three or four days a week. (Tr. 36-37) Richerson testified he has not worked since June 2009. (Tr. 38) He filed for unemployment benefits, but was denied. (Tr. 38)
From 2005-2009, Richerson worked as a retail store manager at Footlocker. (Tr. 39-40) His responsibilities included tracking inventory, training part-time employees, making sales, and setting schedules. (Id.) In this job he was required to lift more than 20 pounds. (Tr. 42) Richerson was terminated for "discount abuse, " i.e., selling items at below-retail prices more frequently than permitted. (Tr. 40-41)
Richerson also worked in food service for Airmark with responsibility for inventory and paperwork. (Tr. 41-42) He did not have to lift more than 20 pounds (Tr. 42)
Richerson worked for the St. Louis Board of Education in a warehouse doing light janitorial work and in food service for about ten years. (Tr. 42-43) He worked on the assembly line for Ford Motor Company and testified that he was terminated after suffering a seizure requiring a period of leave longer than he had actually been working for the company. (Tr. 44)
Richerson worked in the warehouse for Bookstores, pulling and packing books. (Tr. 44-45) He tried to avoid lifting in that job. (Tr. 45) In 1999, he left Bookstores to go to Key State Automotive Parts because they paid more. (Tr. 46) At Key State Richerson pulled orders and packed auto parts for different companies. He didn't have to do any lifting. (Tr. 45-46) It was Richerson's testimony that he was terminated from Key State because he told the owner he didn't like the way he was speaking to him. (Tr. 46) Richerson also had a part-time cleaning business for one year that he worked nights after working his regular job. (Tr. 47-48) He never realized a profit from this business. (Tr. 48)
Richerson was diagnosed with a seizure disorder at the age of 8. (Tr. 48) He testified that he typically has between 3 and 5 seizures in a day, and never goes a week without one. (Tr. 52) His seizures vary in intensity, and require a period of time for recovery. (Tr. 48-51) Richerson testified that the seizures are triggered by stress, hunger, excitement, upset, flashing lights, and a change of seasons (Tr. 51-52) He also has a history of grand mal seizures which are controlled by medication. (Tr. 53) He has issues affording his seizure medication. (Tr. 54)
Richerson further testified he had some problems with depression resulting from job loss which has improved. (Tr. 54-56) He has difficulty with concentration and memory (Tr. 56-57)
Richerson helps with household chores and yard work and occasionally does the grocery shopping (Tr. 57-58) He typically begins his day at 5:30-6:00 a.m. After getting his children to school, he studies from 10:00 a.m. to noon, and then naps for two to three hours. (Tr. 58) He goes to school in the evening, returns home to eat dinner, or he will sometimes prepare dinner. Then he sits ...