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Brewer v. Colvin

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

January 7, 2015

DANA L. BREWER, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.



This action under 42 U.S.C. § 405(g) for judicial review of the final decision of Carolyn W. Colvin, the Acting Commissioner of Social Security (Commissioner), denying the application of Dana Brewer (Plaintiff) for disability insurance benefits (DIB) under Title II of the Social Security Act (the Act), 42 U.S.C. § 401-433, is before the undersigned by the written consent of the parties. See 28 U.S.C. § 636(c).

Procedural History

Plaintiff applied for DIB in November 2010, alleging he had become disabled on August 2, 2006, because of chronic kidney stones, osteoporosis, degenerative joint and disc disease, and a heart attack. (R.[1] at 100-06, 127.) His application was denied initially and following a hearing held in April 2012 before Administrative Law Judge (ALJ) Bradley Hanan. (Id. at 7-20, 25-42, 49, 52-56.) The Appeals Council then denied Plaintiff's request for review, effectively adopting the ALJ's decision as the final decision of the Commissioner. (Id. at 1-3.)

Testimony Before the ALJ

Plaintiff, represented by counsel, testified at the administrative hearing.[2]

Plaintiff, fifty years old at the time of the hearing, testified that he is ambidextrous, recently divorced, and lives with his father. (Id. at 30.) He received divorce papers from his second wife approximately two weeks earlier. (Id.) She left him five months after their December 2006 marriage. (Id.) He does not currently have a driver's license. (Id.) He has a high school diploma and received some college credit when in the Navy. (Id. at 30-31) He was honorably discharged after twenty years' service and is receiving a military pension. (Id. at 31.)

After being discharged, Plaintiff worked for three years as a military policeman. (Id. at 33.) Plaintiff had to quit his last job, a liquid filler operator, after having a heart attack in August 2006 because his cardiologist would not release him to return to the non-air conditioned job site. (Id. at 32.) He could not apply for jobs for six to nine months after the attack and was never hired again. (Id.)

Also preventing him from working is his inability to sit for long because of kidney stones and his fatigue and weakness. (Id. at 34.) He cannot walk far and cannot walk longer than thirty to forty-five minutes before having to sit for ten to fifteen minutes. (Id. at 34-35.) He cannot sit for longer than thirty minutes before having to stand up and move around. (Id. at 35, 36.) He lays down for one to four hours a day. (Id. at 35.) Asked about his kidney stones, Plaintiff explained that he has always had them, but they are getting worse and cause him constant pain. (Id. at 35-36.) Consequently, he has trouble with his daily activities. (Id. at 36.) For instance, he has difficulties putting on his shoes or long pants. (Id.) When he is bothered by the kidney stones, he cannot sit for longer than thirty to sixty minutes. (Id.)

Because of his degenerative disc and joint disease, Plaintiff has back problems that limit his mobility, bending, and lifting. (Id. at 37.) He cannot lift more than ten pounds. (Id.) He uses a cane most of the time and has been for five to six years. (Id.) The cane was not prescribed by anyone. (Id. at 40.) Also, Plaintiff is taking medication for depression. (Id. at 37.) Plaintiff's medications cause him to "get the shakes" usually five to seven days a month. (Id. at 38-39.) His medications include aspirin, Lipitor (a statin to reduce levels of "bad" cholesterol, low-density lipoprotein (LDL)), and increase levels of "good" cholesterol, high-density lipoprotein (HDL)), metoprolol (a beta blocker), Wellbutrin (an antidepressant), Plavix (an anti-coagulant), Niaspan (to reduce LDL and increase HDL), and Lexapro (an antidepressant). (Id. at 40.)

Plaintiff pays his first wife half his pension. (Id. at 33.)

Plaintiff used to drink, but has never been told by anybody he has to stop. (Id.) He has never used illegal drugs. (Id. at 34.)

Plaintiff helps his father with chores "[a]s much as [he] can." (Id. at 39.) For instance, he helps clear the table. (Id.) His twin brother sometimes comes over and cooks. (Id.) His brother takes out the trash. (Id.) They use a wood stove for heat, but he has not "been able to do a whole lot of wood cutting or splitting." (Id.) He does not vacuum because he has difficulty bending over. (Id. at 40.)

Remarking that the only medication listed for Plaintiff was aspirin, [3] the ALJ decided to order a psychological examination of Plaintiff. (Id. at 40-41.) The question of his residual functional capacity (RFC) would be addressed after the record was further developed. (Id. at 41.)

Medical and Other Records Before the ALJ

The documentary record before the ALJ includes forms completed as part of the application process, documents generated pursuant to Plaintiff's application, records from health care providers, and assessments of his physical and mental capabilities.

When applying for DIB, Plaintiff completed a Disability Report. (Id. at 126-36.) He is 5 feet 5 inches tall and weighs 193 pounds. (Id. at 127.) Plaintiff stopped working on August 8, 2008, see note six, infra, but had to make changes in his work activity on August 2, 2006. (Id.)

Asked to describe on a Function Report what he does during the day, Plaintiff responded that he drinks a cup of coffee, takes his morning pills, smokes outside, works on a computer, walks a little, eats, watches television, shops a little, eats, takes his night-time medications, and goes to bed. (Id. at 138.) Occasionally he visits with friends or goes to church. (Id.) One to three times a week, he attends lodge meetings. (Id.) He does not take care of anyone else. (Id. at 139.) His impairments sometimes wake him up or prevent him from going to sleep. (Id.) He has difficulty putting on shoes and socks[4] and, sometimes, has trouble standing and bending to shave. (Id.) He shops for household goods and food one to five times a month for 20 to 105 minutes each time. (Id. at 141.) His impairments adversely affect his abilities to lift, squat, bend, stand, walk, sit, kneel, and climb stairs. (Id. at 143.) He can pay attention for as long as needed and can follow written and spoken instructions "very well." (Id.) He also handles stress and changes in routine "very well." (Id. at 144.)

Plaintiff reported on a Disability Report – Appeal form that there had been no changes, no new limitations, and no new impairments since he had filed for DIB. (Id. at 163.)

An earnings report for the years from 1978 through 2008 indicated steadily increasing annual earnings for the years 1985 to 1999, when he earned his highest amount, $26, 071, [5]followed by sporadic earnings. (Id. at 107.) For instance, in 2000 Plaintiff had annual earnings of $10, 593; in 2002, he had no earnings; in 2004, he had earnings of $24, 695; in 2006, earnings of $9, 405; no earnings in 2007; and, in 2008, $127.[6]

The medical records before the ALJ are summarized below in chronological order, beginning with the report of Plaintiff's May 2004 initial visit to Matthew Tiefenbrunn, M.D. (Id. at 396.) Plaintiff reported that he was depressed, had problems sleeping, and had no energy or appetite. (Id.) A relationship had recently ended. (Id.) He had suicidal thoughts, but no plan. (Id.) On examination, he had "a markedly blunted affect" and bordered on being tearful. (Id.) Dr. Tiefenbrunn diagnosed Plaintiff with depression, prescribed Lexapro, and directed Plaintiff to follow-up in six weeks or sooner if needed. (Id.)

Plaintiff next saw Dr. Tiefenbrunn in September 2005, complaining of vomiting, fever, and mid-back pain. (Id. at 396.) A computed tomography (CT) scan of his kidney, ureter, and bladder was performed to rule out renal lithiasis (the formation or presence of stony concretions, calculi). (Id. at 396, 408.) The CT scan revealed that Plaintiff had a horseshoe kidney[7] and multiple bilateral intrarenal calculi. (Id. at 408.)

In November, magnetic resonance imaging (MRI) scans of Plaintiff's spine showed moderate wedge deformities of the T11 and T12 vertebral bodies. (Id. at 403-07.) He was diagnosed with osteoporosis; Fosamax was recommended. (Id. at 407.) An electrocardiogram (ECG) was normal. (Id. at 401.)

On August 2, 2006, Plaintiff went to the emergency room at Missouri Baptist Sullivan with complaints of chest discomfort for the past hour, was given TNKase, [8] and then transferred to Missouri Baptist Medical Center (MBMC), where Stuart T. Higano, M.D., performed an urgent catheterization and drug coated stent placement in the first obtuse marginal. (Id. at 312-30.) Plaintiff's risk profile included tobacco abuse and a family history of heart disease. (Id. at 316.) He was monitored for two days, had no further chest pain, and was discharged. (Id.) He was to discontinue tobacco use and was placed on a statin, ACE inhibitor, and beta blocker. (Id. at 327-28.)

When seen by Dr. Higano on August 18, Plaintiff was described as having done "remarkably well." (Id. at 203-04, 457-59.) He had not had any post myocardial infarctions, but was "somewhat tired." (Id. at 203.) On examination, his lungs were clear to auscultation and percussion; his heart rate was regular in rate and rhythm; his extremities were not swollen. (Id.) He was not intending on going back to work and was to start attending college the next week. (Id.) He was also to begin a six-week course of cardiac rehabilitation and was to see Dr. Higano immediately thereafter. (Id.) Dr. Higano told Plaintiff not to do any heavy lifting and to try to avoid smoking. (Id. at 204.)

The following month, Plaintiff saw Dr. Tiefenbrunn for a follow-up of his myocardial infarction. (Id. at 395, 478.) He was reportedly doing well, had not had any recurrent anginal events, was "'taking it easy, '" and was not "really doing any sort of physical activity." (Id.) He had not been taking Fosamax because he did not understand its purpose, but was willing to take it when the purpose was explained. (Id.) He was not in acute distress or discomfort and had an unremarkable examination. (Id.) Fosamax was prescribed and calcium supplementation and weight-bearing exercise were recommended. (Id.) Plaintiff was encouraged to stop smoking. (Id.) He was to return in three months or sooner if needed. (Id.)

Plaintiff informed Dr. Higano when he next saw him, in February 2007, that he had "done reasonably well." (Id. at 207-08, 453-55.) He had briefly attended college, had not completed cardiac rehabilitation, and was not on any formal exercise program. (Id. at 207.) He also had not had any recurrent chest pains, heart failure symptoms, or arrhythmic symptoms. (Id.) He was still smoking, and was told to cut back. (Id.) He questioned whether he could return to his previous work, explaining that he frequently had to lift 50 to 50 pound objects and, during the summer, worked in temperatures exceeding 95 degrees. (Id.) There were no abnormalities on examination. (Id.) Dr. Higano told Plaintiff not to "do[] excessive lifting over 50 pounds and certainly not with any type of excessive thermal exposures." (Id.) Plaintiff replied that he would look for other work. (Id.) Dr. Higano further told him that he would be on aspirin and Plavix for at least a year. (Id.) It was noted on results of lab work performed two ...

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