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Rhone v. Colvin

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

July 9, 2015

KEVIN RHONE, Plaintiff,
CAROLYN COLVIN, Acting Commissioner of Social Security, Defendant.


CATHERINE D. PERRY, District Judge.

This is an action under 42 U.S.C. § 405(g) for judicial review of the Commissioner's final decision denying Kevin Rhone's application for Supplemental Security Income under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381, et seq. Claimant Rhone brings this action asserting disability because of arthritis, intellectual disability, [1] and history of substance abuse. The Administrative Law Judge concluded that Rhone was not disabled. Because I find that the decision denying benefits was not based upon the entire record, I will remand for further consideration.

Procedural History

On August 25, 2011, Kevin Rhone filed for Supplemental Security Income under Title XVI, and initially alleged an onset date of September 1, 1991. The Social Security Administration denied the claim, and Rhone sought a hearing before the Administrative Law Judge ("ALJ"), which was held on March 5, 2013. At the hearing, Rhone orally requested through his attorney that the onset date be amended to August 25, 2011. The ALJ issued an unfavorable decision on March 15, and Rhone appealed to the Appeals Council. That request was denied on February 5, 2014, and so the ALJ's decision now stands as the final decision of the Commissioner.

Evidence Before the ALJ

Function Reports

Rhone submitted two function reports, both of which were completed by his cousin. The reports state that Rhone lives with his girlfriend and has no problems with his personal care. Rhone drives a car and can perform household chores, including laundry, ironing and cooking without help or encouragement. Rhone repeated that he cannot read, but he is able to pay bills and count change. He spends time with others, including attending church twice per week. Rhone can follow spoken instructions and gets along well with authority figures. Rhone's conditions affect his ability to lift, squat, bend, stand, reach, kneel, understand, follow instructions, complete tasks, concentrate, and remember. In the space left to explain how his conditions affect each ability, Rhone referred to his illiteracy. Tr. 150-57, 170-176.

Rhone's Testimony

On March 5, 2013, Rhone testified before the ALJ that he dropped out of school in ninth grade because he could not keep up his G.P.A. He always had a tutor while in school and received help with most subjects. Rhone testified that although he can read and write, he cannot understand newspaper articles and needed help submitting his SSI benefits application. Rhone cannot multiply or divide, but he can add and subtract. Tr. 34, 36-38.

Rhone has a driver's license, but he required the questions to be read to him. At past jobs, he has been able to follow instructions after being shown how to do the work. Tr. 38-40

Rhone has been working part-time as a gas station janitor since May 2012, and his duties involve cleaning, dusting, and mopping. Rhone also stocks shelves, which requires lifting canned goods and sugar; however, cases of soda are too heavy. Rhone started full-time, but had to switch to part-time, because the arthritis in his hands and feet prevent him from lifting, grabbing, and standing on his feet for too long. He works five days a week for approximately four hours per day, although his supervisor lets Rhone take extended breaks when his hands hurt, so long as the work is completed. When Rhone leaves work, he feels "sluggish and tired" and needs to "lay down due to hepatitis." Tr. 34-36, 46, 53.

Sometimes at work, Rhone's hands swell; this prevents him from gripping boxes and pens. The swelling occurs daily, although it improved for a month after receiving some shots in his hands. Sometimes Rhone's feet stiffen up and he needs to sit until they feel better. Rhone also gets very tired and breathless "really soon"; his doctor thinks this is caused by his hepatitis, which began acting up after Rhone was released from prison. Although this makes Rhone want to sit down, he pushes through it in order to work. Tr. 40-43.

Rhone lives with his girlfriend and helps with the chores, which include sweeping and cleaning. These tasks cause him trouble and Rhone often needs to lie down. When shopping, Rhone pushes the buggy. Rhone does not leave the house much, because he is too tired and wants to rest before his next week begins. He used to enjoy walking and exercising, but he has been unable to do those activities since his hepatitis started acting up. Tr. 44-45.

Rhone testified that he saw a "Dr. Sam" for the pain in his hands. Rhone received the shots in his hands and some medicine that caused him to see double. The ALJ requested copies of that medical evidence from Rhone's attorney. Tr. 48-49.

Vocational Expert

The ALJ also received testimony from a vocational expert ("VE"), who based her testimony upon Rhone's medical records, testimony, and recent work history as a janitor. The VE testified that Rhone's current job would be classified as light unskilled. The ALJ presented the VE with a hypothetical person of Rhone's age, with limited education, capable of doing only medium work activity, and who was limited to simple, routine, and repetitive tasks. The VE testified that the hypothetical individual would be capable of performing Rhone's past work. The VE described the jobs available in Missouri and nationally: cleaner two (medium, unskilled) and dining room attendant (medium, unskilled).

The ALJ posed a second hypothetical person to the VE, reducing the individual to only light work and keeping all other traits constant. The VE testified that this second individual could work three different light, unskilled jobs: hand presser, small product assembler, and housekeeping cleaner. Each of these jobs was available in the national and Missouri economies.

Rhone's counsel asked the VE whether the second individual could perform the jobs if he were limited to standing at thirty minutes at a time with the option to sit for up to thirty minutes throughout the workday. The VE testified that such an individual could not work as a housekeeping cleaner but could perform the other two jobs. If further limited to frequent handling, fingering, and manipulating objects with the upper bilateral extremities, the individual would still be able to work as both a hand presser and small products assembler. However, if handling and fingering were reduced to occasional, both hand presser and small products assembler would be precluded.

Rhone's counsel then changed the first hypothetical by imposing a limitation that the worker would need a supervisor routinely to demonstrate the job duties as needed. The VE testified that although the job would remain at a medium work activity level, the person would likely need to work at a sheltered workshop environment. Tr. 54-58.

Medical Records

On April 8, 2009, Rhone complained to the Bureau of Prisons Health Services that he was having difficulty in reading books and newspapers. He requested a pair of reading glasses. Tr. 325.

Rhone underwent a psychological evaluation by Dr. Paul Rexroat, Ph.D., on November 25, 2011. Rhone reported that he dropped out of school in the ninth grade because he lost interest and had difficulty learning. He began using marijuana and heroin at age 13 and last used them in 2001. Dr. Rexroat noted that Rhone appeared well groomed and nicely dressed; he had a normal energy level and was alert. Rhone was unable to perform basic multiplication or division, and he used his fingers to solve simple addition and subtraction problems. Rhone appeared to be functioning "below the average range of intelligence." He could understand and remember simple instructions and can sustain concentration and persistence with simple tasks. Dr. Rexroat reported no Axis I or II diagnoses; he noted occupational, educational, and housing stressors on Axis IV, and reported a Global Assessment of Functioning (GAF) score of 55. Tr. 217-219.

In May 2011, Rhone sought treatment from Dr. Laila Hanna and received a new patient physical. He reported no problems with fatigue and there are no notes related to arthritis. At his July 7 follow-up, Dr. Hanna assessed Rhone as having chronic hepatitis type B. Tr. 267-271. On July 29, 2011, Rhone returned ...

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