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Orme v. Colvin

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

September 30, 2014

DIRK ORME, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


ABBIE CRITES-LEONI, Magistrate Judge.

This is an action under 42 U.S.C. § 405(g) for judicial review of Defendant's final decision denying the application of Dirk Orme for Supplemental Security Income Benefits under Title XVI of the Social Security Act. This case has been assigned to the undersigned United States Magistrate Judge pursuant to the Civil Justice Reform Act and is being heard by consent of the parties. See 28 U.S.C. § 636(c). Plaintiff filed a Brief in support of the Complaint. [Doc. 13] Defendant filed a Brief in Support of the Answer. [Doc. 18]

Procedural History

On May 19, 2010, Plaintiff filed an application for Supplemental Security Benefits, claiming that he became unable to work due to his disabling condition on February 1, 2003. (Tr. 113-16.) This claim was denied initially and, following an administrative hearing, Plaintiff's claim was denied in a written opinion by an Administrative Law Judge (ALJ), dated June 11, 2012. (Tr. 67-71, 6-19.) Plaintiff then filed a request for review of the ALJ's decision with the Appeals Council of the Social Security Administration (SSA), which was denied on April 18, 2013. (Tr. 5, 1-4.) Thus, the decision of the ALJ stands as the final decision of the Commissioner. See 20 C.F.R. §§ 404.981, 416.1481.

Evidence Before the ALJ

A. ALJ Hearing

Plaintiff's administrative hearing was held on April 24, 2012. (Tr. 22.) Plaintiff was present and represented by counsel. Id . Also present was Vocational Expert Dolores Gonzalez. Id.

The ALJ examined Plaintiff, who testified that he was forty-two years of age, divorced, and had a thirteen-year-old son. (Tr. 25.) He lives at his parents' home on the ground floor of the two-story home, and his parents live in the basement. (Tr. 26.) Two teenaged children, who are friends of the family, live on the second floor of the home. Id . Plaintiff's parents take care of the teenagers, because their parents are disabled. Id.

Plaintiff testified that he attended college for a year-and-a-half, and did not obtain a degree. (Tr. 28.) In regard to criminal history, he was sentenced to ten days of "work release" for a DUI (pain medication)conviction. (Tr. 29, 42.)

Plaintiff testified that he was not working at the time of the hearing. (Tr. 29) He had been receiving food stamps and Medicaid benefits for approximately eight years. (Tr. 29-30.) Plaintiff thought that he may have filed a workers' compensation claim for a right shoulder injury he sustained. (Tr. 30.)

Plaintiff's last work was in 2004 when he worked as a carpet cleaner. (Tr. 31.) He worked at the position for only about one week, because he sustained an injury after falling. Id . Plaintiff stated that he did not file a claim related to this injury. (Tr. 32.)

Plaintiff's work prior to 2004 included: working for a tile company for a short period, where he worked as a "helper, " assisting with tile repair and tearing out floors, id.; selling carpet (Tr. 33) and driving a forklift as an independent contractor from 1999 through 2001 (Tr. 37); working as a "helper" at a printing press in 1998, where he was involved stacking the printed material when it came off the printing machine (Tr. 33-34); working as a "picker" at AT Tools in 1997 where he took items off the shelves and put them on to a cart to be shipped, (Tr. 34); working at Tetra Plastics, which involved taking a plastic part off the press, stacking it, and checking it (Tr. 35); working at a gold mine in Alaska in 1996 where he drove a bulldozer and excavator (Tr. 36); and installing electronic locks at motels in 1996 at National Lock. Id.

The ALJ noted that Plaintiff had walked into the hearing room using a cane. (Tr. 38.) Plaintiff testified that he always uses the cane when walking, unless he is walking a very short distance. (Tr. 39.) Plaintiff's doctor prescribed the cane. Id.

Plaintiff underwent hip replacement surgery in 2003 and 2006. Id . He had surgery on his right knee in 2010. (Tr. 40.) Although Plaintiff experiences back pain, he has not had back surgery. Id . Plaintiff had surgery on his left foot for a broken heel and he no longer has foot pain. (Tr. 41.)

Plaintiff stated that he is permitted to see his son every other weekend, but he has not been seeing him. Id . Plaintiff's parents have been making his child support payments, which are $200.00 a month. (Tr. 40-41.)

Plaintiff testified that he was not taking any pain medications at the time of the hearing. Id . Plaintiff stated that he does have a history of drinking alcohol or using any illegal drugs. (Tr. 42.)

Plaintiff does not have a driver's license. Id . He lost his license in 2009, as a result of the DWI and he has not tried to get his license back, because he cannot afford a car. (Tr. 43.)

Plaintiff testified that he does not do any housework or yard work. Id . Plaintiff's mother shops for groceries for him. Id . Plaintiff testified that he watches television and reads all day. (Tr. 44.)

Plaintiff stated that he is able to walk with his cane about 100 feet before he has to rest and that he is able to stand without his cane for "a couple minutes." Id . He can sit for about twenty minutes before he has to stand up and stretch. Id . Plaintiff testified that he does not lift "anything, " because he does not have the balance to lift. (Tr. 45.)

The ALJ pointed out that in July of 2009, Dr. Sandra Tate examined Plaintiff and found Plaintiff could lift up to thirty pounds. Id . Plaintiff replied that he underwent knee surgery after Dr. Tate's examination and indicated that he cannot lift thirty pounds without falling over due to his balance issues. (Tr. 46.)

The ALJ next noted that Plaintiff underwent a consultative examination with Dr. Charles Mannis in December of 2010. Id . Plaintiff testified that he could lift ten to fifteen pounds, but he was "not sure" if Dr. Mannis' findings were accurate. Id . When asked if he could perform a job where he was seated eight hours a day, Plaintiff responded: "I mean, I would-if they let me get up and-if they let me stand up, you know, and sit down. You know, if they really worked with me." (Tr. 47.)

When questioned by his attorney, Plaintiff testified that he can only walk up stairs one at a time if he is holding on to something. Id . Plaintiff stated that he is able to bathe and dress himself, and uses a "shoe horn thing" that allows him to put on his shoes without bending down. (Tr. 48.)

Plaintiff stated that he has fallen five to six times in the past two years due to his balance problem. Id . He does not walk up stairs and stays on the main floor of his home. (Tr. 49.) He moved to the main floor of the home in 2003. Id.

The ALJ examined Vocational Expert (VE) Dolores Gonzales, who testified that Plaintiff's past work is classified as follows: binder machine feeder offbearer (light, unskilled); card key lock installer (light, semi-skilled); carpet sales person (light, semi-skilled); and production assembler (light, unskilled). (Tr. 52-53.)

The ALJ asked the VE to assume a hypothetical claimant with Plaintiff's background and the following limitations: light work; must have a sit/stand option with the ability to change positions frequently; can climb stairs and ramps occasionally; can never climb ropes, ladders, or scaffolds; can never kneel, crouch, or crawl; limited to frequent pushing and pulling with legs; ambulates with a cane; and must avoid concentrated exposure to extreme cold, wetness, hazards of heights, and machinery. (Tr. 53.) The VE testified that the individual would be unable to perform Plaintiff's past work but could perform other light, unskilled jobs such as order caller (41, 844 positions nationally, 983 in Missouri); and mail sorter (25, 532 positions nationally, 607 in Missouri). Id.

The ALJ next asked the VE to assume a hypothetical individual who was limited to sedentary work, with no sit/stand option but the other limitations from the first hypothetical remained. (Tr. 54.) The VE testified that the individual could perform the following sedentary positions: information clerk (997, 080 positions nationally, 15, 220 ...

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