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Kelly v. Colvin

United States District Court, Eastern District of Missouri, Eastern Division

January 7, 2015

WAYNE R. KELLY, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.



This is an action for judicial review of the Commissioner’s decision denying Wayne Kelly’s application for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401, et seq. Section 205(g) of the Act provides for judicial review of the Commissioner’s final decision. 42 U.S.C. § 405(g).

In his application for benefits, Kelly alleged a period of disability beginning on November 1, 2008. Kelly claims that he is disabled because of back pain resulting from an injury sustained in 2008. He also claims that he suffers from depression and alcohol abuse related to his back pain. Kelly claims that these impairments prevent him from engaging in substantial Gainful Activity (SGA) and that the Administrative Law Judge (ALJ) erred in failing to fully develop the record when he refused to submit interrogatories from Kelly’s attorney to the vocational expert (VE) that testified at the administrative hearing, thereby violating Kelly’s due process rights.

Because the ALJ’s decision is supported by substantial evidence and because the ALJ did not violate Kelly’s due process rights or fail to develop the record, I will affirm the Commissioner’s final decision denying disability benefits.

I. Procedural History

Kelly filed an application for disability benefits on February 7, 2011. Kelly’s application was denied on March 21, 2011 and he filed a timely application for a hearing before an ALJ on May 20, 2011. The hearing before the ALJ was held on May 15, 2012. The ALJ issued a decision on June 26, 2012, finding that Kelly was not disabled within the meaning of the Act because he was capable of successfully adjusting to other work that existed in significant numbers in the national economy. Therefore, the ALJ denied Kelly’s application for benefits. On July 13, 2012, Kelly filed a request for review of the ALJ’s decision with the Appeals Council. On July 24, 2013, the Appeals Council denied Kelly’s request for review. Therefore, the ALJ’s decision stands as the final decision of the Commissioner. Kelly filed this action for judicial review on March 31, 2014.

II. Evidence Before the ALJ

A. Medical Evidence

I have examined the administrative record in this case, including the medical evidence and the claimant’s testimony. The record includes detailed information from medical examinations, testing, and the claimant’s own testimony. Because the claimant does not contest the ALJ’s assessment of the medical evidence, the claimant’s impairments, or the RFC determination, I will not discuss the ALJ’s evaluation of those issues. Nor will I discuss the ALJ’s five-step evaluation process established by the governing regulations for determining whether a claimant is disabled. See 20 C.F.R. § 1520(a) (setting out the procedure used by an ALJ for determining when an individual is disabled).

B. Vocational Expert’s Testimony

At the hearing before the ALJ on May 15, 2012, a VE, Dale Thomas, testified on the issue of what work in the national economy the claimant was capable of performing. The VE also described Kelly’s past relevant work and what descriptions in the Dictionary of Occupational Titles (DOT) they matched. After testifying that Kelly would not be able to perform any past relevant work, the ALJ asked the VE if there was other work Kelly could adjust to and perform. The VE responded:

[T]here would be production work that such a person could do as a patcher, that’s an electronics assembly job, the DOT number for the patcher is 723.687-010. That [INAUDIBLE] occupation is unskilled, sedentary production workers of which is an example, the numbers in the nation are 15, 500 and in the region which would be Missouri 400. In addition there would be inspectors, testers, sorters, and weighers such as a touch up screener. A touch up screener has a DOT number of 726.684-110. And for that group the numbers are 7, 7000 in the nation, 150 in the region. There are no other examples that I have.

(Tr. 77-78).

The VE was then questioned by Kelly’s attorney, Jack Adams.[1] Adams and the VE participated in the following exchange:

Q: As far as the numbers you gave in the jobs, was that an assumption of full time or part time jobs, ...

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