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Taylor v. Colvin

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

December 18, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


THOMAS C. MUMMERT, III, Magistrate Judge.

This 42 U.S.C. 42 U.S.C. §§ 405(g) and 1383(c)(3) action for judicial review of the final decision of Carolyn W. Colvin, the Acting Commissioner of Social Security (Commissioner), denying the applications of Kenneth Taylor (Plaintiff) for disability insurance benefits (DIB) under Title II of the Social Security Act (the Act), 42 U.S.C. § 401-433, and for supplemental security income (SSI) under Title XVI of the Act, 42 U.S.C. § 1381-1383b, is before the undersigned United States Magistrate Judge by written consent of the parties. See 28 U.S.C. § 636(c).

Procedural History

Plaintiff applied for DIB and SSI in November 2010, alleging he was disabled as of April 1, 2008, because of plates in his legs, pins in his ankle, cracked vertebrae, and spinal problems. (R.[1] at 132-46, 219.) His applications were denied initially and in February 2013 after a hearing held in August 2012 before Administrative Law Judge (ALJ) Kenneth G. Biskup. (Id. at 8-23, 28-76, 84-91.) After considering additional evidence, the Appeals Council denied Plaintiff's request for review, thereby effectively adopting the ALJ's decision as the final decision of the Commissioner. (Id. at 1-4)

Testimony Before the ALJ

Plaintiff, appearing without representation, Jeffrey F. Magrowski, Ph.D., and Cheresse Lambers, Plaintiff's fiance, all testified at the administrative hearing.

Plaintiff testified that he was then 46 years old, 6 feet tall, and weighed 190 pounds. (Id. at 36.) His weight in April 2008 was approximately 220 pounds. (Id.) He obtained his General Equivalency Degree (GED) in 1982. (Id.) He has graduated from truck driving school, but has never used the diploma. (Id. at 36-37.)

Plaintiff has primarily worked as a construction laborer. (Id. at 37.) He has done the work of a concrete finisher, bricklayer, carpenter, drywall hanger, painter, and landscaper. (Id.) He had tried working for a temporary service after April 2008. (Id. at 38-39.) After December 31, 2011, he had tried working as a restaurant cook but was fired because he could not keep up. (Id. at 41.) In April 2012, he had tried handing out samples for a ham store. (Id. at 42.)

He has a titanium plate in his right leg and pins in his right ankle. (Id. at 43.) These were placed in the 1990s as a result of a gunshot wound. (Id.) He was being treated by Dr. Boyd-Taylor, but has not seen her after April 2008 because his insurance ran out. (Id. at 44.) He owes her $75 for a co-pay and "just quit trying." (Id. at 45.) Asked if he had gone to any of the health clinics that offer care that is free or at a reduced charge, Plaintiff explained that he cannot afford even the little co-pay the clinics require. (Id. at 44.) He had not tried any clinics, but had called one and found out its co-pay. (Id. at 44-45.) He never went to a clinic and asked if they would provide services for free or for a reduced charge. (Id. at 45.) Three or four days earlier, he received a Medicaid card. (Id.)

Asked about an x-ray of May 9, 2011, Plaintiff replied that he had not been x-rayed then. (Id. at 46-47.)

Plaintiff's back has started to hurt because of the problems with his right leg. (Id. at 48.)

Asked about the period after April 1, 2008, Plaintiff testified that he cannot carry anything and cannot lift anything heavier than ten pounds. (Id. at 48-49.) He does not go to the grocery store because he cannot walk farther than one block. (Id. at 49.) He cannot stand for longer than twenty to thirty minutes or sit for longer than "an hour or so" before having to lay down for a couple of hours. (Id. at 51.) He has difficulty using the stairs in his house down to the basement. (Id. at 53.) He does not take any pain medication. (Id. at 52.) He was taking ibuprofen but was told when recently hospitalized that it was aggravating his ulcers. (Id.)

His fiance does all the cooking, cleaning, and laundry. (Id. at 54.) His daughters, one age seven and one age sixteen, live with them. (Id.)

Asked what he does on a typical day, Plaintiff replied that he watches television and reads books or magazines. (Id. at 54-55.) He does "[p]retty much nothing." (Id. at 54.) He stopped driving a year ago because of problems with his leg. (Id. at 55-56.) His fiance drives. (Id. at 56.)

Also, Plaintiff gets cramps in his arms and, approximately every other day, cannot raise them over his head. (Id. at 56-57.)

Ms. Lambers testified that Plaintiff had been treated for his ulcers between 2002 and 2004. (Id. at 60-61.) At the end of May, he was hospitalized at St. John's for high blood pressure. (Id. at 62.) He is now taking medication for it. (Id.) He stopped doing yard work in mid-2008. (Id. at 64.)

She further testified that she thinks Plaintiff does not go places because he is depressed. (Id. at 64.) She has suggested that he see someone about his depression. (Id. at 65.)

Dr. Magrowski testified as a vocational expert (VE). (Id. at 65-71.) He was asked by the ALJ to assume a hypothetical claimant of Plaintiff's age, education, and past work experience who is limited to light work with additional restrictions of only occasionally climbing stairs or ramps and never climbing ladders, ropes, or scaffolding. (Id. at 68.) This person needs to alternate between sitting and standing. (Id.) Asked if this person can perform any work, the VE replied that he cannot perform Plaintiff's past relevant work but can work as a parking lot attendant, contribution solicitor, and cashier. (Id. at 68-69.) These jobs exist in significant numbers in the state and national economies. (Id.)

If this hypothetical claimant can only perform work at the sedentary exertional level, there are jobs he can perform, including surveillance system monitor, order clerk in the food and beverage industry, or some bench assembly work. (Id. at 69.) There is typically very little reaching overhead required in a sedentary job. (Id. at 70.)

If an individual needs to take an extra break at an unscheduled time or to lay down, he cannot maintain competitive employment. (Id.)

The VE further stated that his testimony was consistent with the Dictionary of Occupational ...

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