United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER OF UNITED STATES MAGISTRATE JUDGE
TERRY I. ADELMAN, Magistrate Judge.
This cause is on appeal from an adverse ruling of the Social Security Administration. The suit involves Application for Disability Insurance Benefits under Title II of the Social Security Act. Claimant has filed a Brief in Support of his Complaint, and the Commissioner has filed a Brief in Support of her Answer. The parties consented to the jurisdiction of the undersigned pursuant to 28 U.S.C. § 636(c).
I. Procedural History
On January 13, 2011, Claimant Goeffrey Rhea filed an Application for Disability Insurance Benefits under Title II of the Act, 42 U.S.C. §§ 401 et. seq. (Tr. 191-97). Claimant states that his disability began on April 1, 2009,  as a result of diabetes and diabetic neuropathy, hepatitis C, cancer post op removed Sigmoid resection to colostomy, depression, arthritis, memory loss, confusion, chronic fatigue, and anxiety. (Tr. 220). On initial consideration, the Social Security Administration denied Claimant's claims for benefits. (Tr. 150-54). Claimant requested a hearing before an Administrative Law Judge ("ALJ"). (Tr. 156). On March 22, 2012, a hearing was held before an ALJ. (Tr. 41-69, 122-40). Claimant testified and was represented by counsel. (Id.). Vocational Expert Gerald Belchick also testified at the hearing. (Tr. 135-40, 182-83). Thereafter, on May 10, 2012, the ALJ issued a decision denying Claimant's claims for benefits. (Tr. 105-14). After considering the representative's brief, the Appeals Council found no basis for changing the ALJ's decision on June 11, 2013. (Tr. 1-6, 11-12, 14-19, 297-302). The ALJ's determination thus stands as the final decision of the Commissioner. 42 U.S.C. § 405(g).
II. Evidence Before the ALJ
A. Hearing on March 22, 2012
1. Claimant's Testimony
At the hearing on March 22, 2012, Claimant testified in response to questions posed by the ALJ and counsel. (Tr. 121-35). At the time of the hearing, Claimant was fifty-nine years of age. He has a BA degree in communications. (Tr. 122).
The ALJ noted Claimant worked as a consultant, director of information, systems network analyst, and a senior analyst. (Tr. 122). He worked at BJC Healthcare as a senior analyst II from June 28 through September 16, 2010, but he was not retained for employment during the probation period. (Tr. 123). He testified that the official document "mentioned specifically that I could not multitask and that I was unable to fulfill my assignments, poor performance." (Tr. 129). He further testified that he was told he could not prioritize and follow through on his assignments, and he missed five meetings. (Tr. 130). In 2009, he worked at Advocate Counseling, as a database and general consultant, and his job duties included going out on assignments for clients. (Tr. 123). This job ended when he made a mistake during an assignment with a client. (Tr. 124). In 2008, he worked for a professional medical and surgical supply company for a couple months, but he was terminated for being a poor performer. (Tr. 124).
Claimant started collecting unemployment benefits in 2010 but the benefits ended in March 2012. (Tr. 124). He acknowledged that when he applied for unemployment benefits, he indicated he was ready, willing and able to go to work. (Tr. 125).
Claimant has a past history of colon cancer since 2006, and he was diagnosed with diabetes in 1998. (Tr. 125). He has had numbness in his feet for the past two to three years. (Tr. 125). He testified that he experiences pain in the small of his back based on activity. He has been diagnosed with hepatitis C, and he tried to go through the interferon treatment in 2004. (Tr. 126). He has been diagnosed with early cirrhosis and admitted he sometimes has used alcohol to self-medicate his depression. He testified he has not used alcohol in over a year. (Tr. 127). He has a colostomy, and Dr. Baker is his primary care doctor. Dr. Baker has never referred him for treatment by a psychiatrist, and Dr. Baker has never prescribed any medications for psychological conditions. (Tr. 127). Dr. Baker has prescribed a handicapped placard for his diabetic neuropathy of his feet and the loss of his large toenail. (Tr. 134).
Claimant testified that he has accidents with the colostomy when it becomes overfilled or breaks loose and requiring him to have unexpected bathroom breaks. (Tr. 128).
Dr. Guarino, a pain specialist at Washington University, treats him at the pain management clinic. (Tr. 131). Claimant testified that Dr. Guarino indicated that he might benefit from a steroid injection in his hip on October 13, 2011. He stopped drinking in August 2007 when he was diagnosed with hepatitis C. (Tr. 131). He fractured his right toe causes a problem walking distances and creates a stabbing pain. (Tr. 132). The last time he experienced this problem was on December 20, 2011 after he walked 150 yards. (Tr. 132). Claimant testified how taking Vicodin helps numbs the pain and works 100% of the time. (Tr. 133). He takes medication for diabetes. (Tr. 133).
Claimant testified that he naps two to three times a day. (Tr. 133). He on occasion uses a cane for balance. (Tr. 135).
2. Testimony of Vocational Expert
Vocational Expert Gerald Belchick testified at the hearing. (Tr. 135-40). Mr. Belchick cited his past relevant work to include a consultant position, a light, skilled occupation; a director of information service systems, a skilled occupation and generally performed at the sedentary level; and a network analyst and a senior analyst, a light exertional job. (Tr. 136-37).
The ALJ asked Mr. Belchick to assume that
a hypothetical claimant, age 56 is the amended onset date with 16 years of education. Same past work experience. It's been opined this hypothetical claimant can lift and carry 20 pounds occasionally, 10 pounds frequently; stand or walk for six hours out of eight, sit for six; can occasionally climb stairs and ramps, never ropes ladders, and scaffolds; occasional balance; and should not perform any work with direct contact to or with food products. Given those restrictions and those alone, could this hypothetical claimant return to any past, relevant work?
The ALJ next asked Mr. Belchick the following:
... it's 10 pounds occasionally, less than 10 pounds frequently, stand or walk for two hours out of eight, sit for six, everything else stays the same. It appears from what you've told me that the director of information would be applicable as far as its customarily performed in the national economy and described in the DOT. Would that be fair?
(Tr. 137). Mr. Belchick indicated that would be fair but not as described by Claimant. (Tr. 137).
Counsel asked Mr. Belchick to assume as follows:
The hypothetical would be age 56; he can lift 10 pounds; he has to alternate sitting and walking; cannot sit for more than 30 minutes; needs to walk in order to go to bathroom breaks; and may not be - maybe need to lie down two times a day. Do you have any jobs that he can do?
(Tr. 138). Mr. Belchick indicated no if the individual had to lay down three times during a work day for extended periods other than the regular scheduled breaks. (Tr. 139). Mr. Belchick opined that if the individual had to take unscheduled rest breaks repeatedly over the course of a work day, this restriction would pretty much eliminate all work. When asked if the individual would be off task for 20 percent of the work day, Mr. Belchick responded this would eliminate all work. (Tr. 139).
3. Forms Completed by Claimant
In the undated Disability Report - Adult, Claimant reported completing a continued education in technologies on October 15, 2009. (Tr. 219-228).
In the Function-Report Adult, Claimant reported looking for employment as a daily activity. (Tr. 258). On a regular basis, he goes to church and visits his sister in the nursing home.
(Tr. 262). He reported being able to use the computer for ninety minutes at a time. (Tr. 267).
III. Medical Records and Other Records
To obtain disability insurance benefits, Claimant must establish that he was disabled within the meaning of the Social Security Act not later than the date his insured status expired - September 30, 2014. Pyland v. Apfel, 149 F.3d 873, 876 (8th Cir. 1998) ("In order to receive disability insurance benefits, an applicant must establish that she was disabled before the expiration of her insured status."); see also 42 U.S.C. §§ 416(I) and 423(c); 20 C.F.R. § 404.131.
On October 23, 2006, Dr. George Morgan performed a colon cancer screening and diagnosed Claimant with colon polyps and performed a colonoscopy. (Tr. 361, 374-). On November 30, 2006, Dr. Louis Montana performed a sigmoid colon partial resection secondary to a cancerous colon polyp. (Tr. 364). In follow-up treatment, he complained of abdominal distention and shortness of breath. (Tr. 369). He was assessed with post colon resection for adenocarcinoma of the colon now complicated by an anastomotic leak with peritonitis. (Tr. 370). In the Surgical Pathology Report, the final pathologic diagnosis was descending colon polyp, proximal sigmoid colon polyp, and rectal biopsy. (Tr. 451-55).
The November 22, 2006 x-ray of his chest showed blunting of posterior costophrenic angle compatible with pleural reaction or small effusion. (Tr. 459).
On November 30, 2006, Dr. Montana performed a laparoscopic sigmoid colon resection. (Tr. 715-19).
On December 12, 2006, Dr. Montana performed an exploratory laparotomy, colon resection, and colostomy to repair the anastomotic leak and peritonitis. (Tr. 303). He presented to the emergency room with a history of abdominal pain, distention, and shortness of breath. (Tr. 376). Dr. Montana noted a colostomy was fashioned in the left side of his abdominal wall. (Tr. 303). The surgical report included the final pathologic diagnosis of sigmoid colon and acute serositis, pericolic hemorrhage and acute inflammation. (Tr. 457). He had a prolonged intubation related to his morbid obesity and severity of his illness as he developed moderate-to-severe systemic inflammatory response syndrome with renal insufficiency, electrolyte abnormalities, and hypotension. (Tr. 393). The December 20 CT pulmonary angiogram showed no definite CT evidence for pulmonary embolism, a small right pleural effusion with compressive atelectasis, ascites, and left lower posterior pleural calcification. (Tr. 473-74). On December 26 rehab assessed Claimant for his need for services and placement prior to discharge. (Tr. 376). His past medical history included obesity, obstructive sleep apnea, diabetes mellitus, hepatitis C, and renal insufficiency related to diabetes. Neurological examination showed him to be alert and oriented x3, in no acute distress, and his mood and affect to be appropriate. (Tr. 376). On December 29, 2006, he was discharged to home and advised to call immediately if any further progression of shortness of breath or abdominal pain, but he developed significant shortness of breath and readmitted. (Tr. 386, 394). His discharge diagnosis was anastomotic leak from prior colon resection site, acute peritonitis, morbid obesity, non-insulin dependent diabetes mellitus, hypertension, and chronic active Hepatis C. (Tr. 393).
Claimant presented to the emergency room on December 30, 2006 complaining of a fever and abdominal pain. (Tr. 378, 380). After treatment with a neubulizer, he had excellent improvement in his breathing, and he reported feeling much better. (Tr. 379). He also received Tylenol and IV fluids and was admitted to undergo a formal CT imaging of his abdomen to more clearly delineate the abnormalities identified. (Tr. 379). Claimant reported being recently divorced and experiencing recent anxiety. (Tr. 380). CT of his chest showed a pelvic fluid collection requiring drainage. (Tr. 381). The CT of his abdomen and pelvis substantial ascites about the right lobe of the liver, and the liver to be cirrhotic, and multiple large fluid collections in the abdomen. (Tr. 481-82). In the January 2, 2007 consultation, Dr. Norman Aliga recommended a short stay in acute rehab for gradual upgrade of his endurance, mobility, and selfcare skills. (Tr. 386-87). He was discharged from the hospital on January 3 after having supportive respiratory therapy and continued with diuresis therapy and transferred to the Marianjoy Hospital. (Tr. 402).
On January 3, 2007, Claimant was admitted to Marianjoy Rehabilitation Hospital for acute inpatient rehabilitation after being diagnosed with colon cancer and having a post resection with colostomy. (Tr. 310). He reported no pain in his abdomen. (Tr. 310). Dr. Padma Srigiriraju decided to initiate acute inpatient, neuromuscular rehabilitation with physical therapy to work on transfers, gait training, and bed mobility, and occupational therapy to work on upgrading self-care skills. (Tr. 312). On January 6, he reported feeling stronger and wanting to go home soon. (Tr. 315). On January 10, Dr. Srigiriraju decided to transfer Claimant to Edward Hospital for further evaluation of his high fevers and possible drainage of his abdominal and pelvic abscesses. (Tr. 323).
On January 10, 2007, Dr. Michael Peters admitted Claimant because of recent complicated history and his recurrent fever. (Tr. 389). His assessment included recurrent fever with abnormal urinalysis and recurrent dyspnea. (Tr. 391). On consultation of intra-abdominal abscess infection, Dr. Jonathon Pinsky recommended a CT guided drainage and antibiotic therapy. (Tr. 395-96). On January 11, Dr. Paul Backas performed a CT guided placement of 8 French all purpose drainage catheter into his left lower quadrant abscess. (Tr. 487).
He was admitted to Edwards Hospital on January 10, 2007 and diagnosed as having a fluid collection and abdominal abscess with perforated viscus. (Tr. 339, 399). Treatment included a CT guided drain placed in the largest abscess cavity of his abdomen and immediate purulent return was obtained. (Tr. 399). He reported working in an office and having mild arthritis related to pain in the knee joints. (Tr. 341). Claimant has a history of sigmoid colon cancer, and he had a laparoscopic resection of the colon followed by complications with abdominal fluid collection and abscesses for which he was hospitalized and had abdominal abscess drainage. (Tr. 342). By January 19, he was feeling well, strong, and participating in rehab relatively well. (Tr. 400).
On January 17, 2007, Dr. Christopher Parnell recommended acute inpatient rehabilitation, Claimant was transferred back to Marianjoy Hospital. (Tr. 340). Claimant refused physical therapy and occupational therapy evaluation. (Tr. 397). He was discharged to home in good condition on January 27. (Tr. 352). Dr. Srigiriraju found his functional abilities on discharge to be independent with eating, bed mobility, grooming, and bathing, and his ambulation without the need of an assistive device or rolling walker, and he is able to weight bear as tolerated. (Tr. 352). Dr. Srigiriraju found his final diagnosis to be ...