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Walker v. Colvin

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

August 19, 2015

MARLIN L. WALKER, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

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[Copyrighted Material Omitted]

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          For Marlin Walker, Plaintiff: Jeffrey J. Bunten, LEAD ATTORNEY, JEFFREY J. BUNTEN, ATTORNEY AT LAW, St. Louis, MO.

         For Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant: Nicholas P. Llewellyn, LEAD ATTORNEY, OFFICE OF U.S. ATTORNEY, St. Louis, MO.

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         This matter is before the Court for review of an adverse ruling by the Social Security Administration.

         I. Procedural History

         On June 12, 2006, plaintiff Marlin L. Walker filed applications for disability insurance benefits, Title II, 42 U.S.C. § § 401, et seq., and supplemental security income, Title XVI, 42 U.S.C. § § 1381, et seq., with an alleged onset date of January 31, 2005. (Tr. 64-66) After plaintiff's application was denied on initial consideration (Tr. 41-45), he requested a hearing from an Administrative Law Judge (ALJ). (Tr. 46-47) Plaintiff and counsel appeared for a hearing on March 13, 2008. (Tr. 22-37) The

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ALJ issued a decision denying plaintiff's application on May 22, 2008. (Tr. 7-18) Plaintiff requested the Appeals Council reverse the ALJ's decision and remand for a new hearing. (Tr. 6) The Appeals Council denied plaintiff's request for review on April 21, 2010. (Tr. 1-3)

         Plaintiff then appealed the ALJ's decision to this Court, which the Court reversed and remanded on January 31, 2011, at the request of the parties, for further consideration of plaintiff's claim. (Tr. 320) A different ALJ held a second hearing on June 15, 2011, at which plaintiff and counsel again appeared. (Tr. 288-301) The ALJ issued a decision again denying plaintiff's application on July 21, 2011. (Tr. 261-75) Plaintiff requested the Appeals Council reverse the ALJ's decision and remand for a new hearing. (Tr. 280-81) The Appeals Council denied plaintiff's request for review on March 15, 2014. (Tr. 258-60) Accordingly, the ALJ's July 21, 2011, decision stands as the Commissioner's final decision.

         II. Evidence Before the ALJ

         A. Disability Application Documents

         Plaintiff was born on August 13, 1970. (Tr. 64) He is single, but he claimed two dependents in his disability application, and the Department of Veterans Affairs (VA) acknowledged the birth of a third dependent after his alleged onset date. (Tr. 64, 65, 81) He served in the United States Army from December 27, 1989 until December 16, 1992. (Tr. 64) Plaintiff graduated from high school, where he attended regular education classes.[1] (Tr. 95) He can understand, read, and write English. (Tr. 90) Plaintiff was living with his mother as of June 12, 2006; he received food stamps. (Tr. 71)

         An earnings report generated by the Social Security Administration shows that from 1987 to 2005, plaintiff earned no income in four years, he earned less than $10,000 in nine years, and he never earned more than $24,000 in any year. (Tr. 73) His earnings from income in his last year of work were only $2,985. Id. Plaintiff claimed that he received approximately $430.00 per month in veteran's benefits as of his application date--the VA's records indicate that his benefits increased to $1,503.00 per month on April 1, 2007, and that he is presently receiving $1,192.00 per month. (Tr. 70, 81)

         Plaintiff last worked in January 2005. (Tr. 97) In his Disability Report (Tr. 86-96), plaintiff listed his disabling conditions as post-traumatic stress disorder (PTSD), " major depression," " memory loss," and degenerative disc disease of the lumbar spine. (Tr. 90) Plaintiff stated that he has " chronic pain in [his] back from ruptured discs" and that he has " trouble remembering things." Id. He claimed that his symptoms first began in 1992, but he admitted that he worked after his symptoms began--he claims he only became unable to work due to his conditions on January 31, 2005. (Tr. 91) Plaintiff reported that he stopped working because he " was awarded non-service connected VA disability benefits," and that he " only worked during the waiting period because [he] had to in order to pay the bills," averring that he only worked " part time." Id.

         Plaintiff reported that he worked as a janitor " off and on" from 1992 until 2005. This job entailed cleaning apartments, including cleaning appliances, walls, and carpets; and removing trash. (Tr. 91-92) As

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a janitor, plaintiff worked an eight-hour day, five days a week; the work involved walking, standing, and climbing for up to seven hours a day. ( Id. ) Plaintiff also was required to lift cleaning equipment, including carrying vacuum cleaners, old carpets, mattresses, and other items " up and down 3 to 4 flights of stairs." Id. Plaintiff reported that he would sometimes lift up to fifty pounds, and he frequently was required to lift up to ten pounds. Id.

         Plaintiff reported that he has been seen on an outpatient basis at the VA medical center from 1992 onward, where he received psychiatric treatment and " shots in [his] back for pain." (Tr. 93) He also recalled being prescribed 800 mg of Ibuprofen and unspecified " muscle relaxers" for his back pain, neither of which caused any side effects. (Tr. 94) Plaintiff claimed that he is " totally depressed" and that he thinks about " committing suicide, because [of] the pain [he is] in is sometimes unbearable." (Tr. 104) He claimed that he can " hardly eat" because his appetite is poor. Id. His weight was approximately 185 pounds. (Tr. 90) Plaintiff asserted that he " can't do much of anything, so [he] go[es] and lie[s] back down" after getting up. (Tr. 104) Though he stated that he can no longer play sports or work, he remained able to dress, bathe, and feed himself without difficulty; his lower back hurts when he uses the toilet. (Tr. 105) He reported that he does not prepare his own meals or perform any household chores. (Tr. 106) He reported that he drives a car, though he does not do any shopping. (Tr. 107) Plaintiff stated that he has no hobbies or social activities. (Tr. 108)

         Plaintiff claims that his back pain and other illnesses affect his ability to concentrate, understand, climb stairs, lift, squat, and bend. He did not report any difficulty standing, sitting, following instructions, or using his hands. (Tr. 109) Although plaintiff also did not report any difficulty with walking, he claimed he was able to walk only ten feet before needing to rest for twenty minutes. Id. Plaintiff did not ambulate with any assistive device. (Tr. 109-10). Plaintiff stated he had been fired from a job because he " couldn't focus; " he did not attribute his discharge to any mobility limitations. (Tr. 110)

         Brenda Wade, plaintiff's aunt, completed a Function Report. She did not respond to the question regarding the amount of time she spent with plaintiff, but she wrote, " we don't do anything together." (Tr. 112) Nevertheless, she responded to questions about plaintiff's daily activities and the effects of his impairments. (Tr. 112-20)

         In a Disability Report Appeal completed on August 17, 2006, plaintiff claimed that he was living with his mother and that his conditions had worsened since his previous report. (Tr. 123, 129) Specifically, plaintiff stated that: " I went into a deeper depression," and his back pain was " worse." (Tr. 123) Plaintiff recalled seeing Dr. Bhalodia at the VA Medical Center on May 10, 2006, for what he described as, " severe throbbing back pains," such that he " couldn't lift [him]self out of bed." (Tr. 124) He was given " a shot in the back and ibuprofen," as well as " codeine for pain." Id. Plaintiff states that he was prescribed 600 mg of ibuprofen and 300 mg of combined codeine and acetaminophen for " severe pain." (Tr. 126) On an additional Disability Report Appeal form, plaintiff recalled taking 800 mg of ibuprofen, combined codeine and Tylenol (acetaminophen), and unspecified muscle relaxers, for back pain. (Tr. 135) Plaintiff stated that his conditions affect his ability to " take care of [his] personal needs because [he] stay[s] so depressed." (Tr. 127)

         Plaintiff's self-reported work history is sporadic. (Tr. 139) From 1989 to 1992 he

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served in the United States Army as a tank driver. Id. From 1995 to 1997 he was a temporary assembly line worker in an automobile plant. Id. He worked again from 1998 to 1999 as an airport custodian. Id. Finally, he reported that he was a janitor for an apartment complex from June 2004 to March 2005, and that he was a laborer for a construction company, rehabbing houses, hanging drywall, painting, and cleaning up construction sites from 1999 until an unspecified time in 2005. (Tr. 139, 386)

         At one point, plaintiff listed his medications as 10 mg of Cyclobenzaprine,[2] 30 mg of codeine, 500 mg of Naproxen,[3] and an unspecified dose of Demerol (Meperidine),[4] all for knee and back pain. (Tr. 141) He also reported taking over-the-counter extra-strength Tylenol for back and knee pain. Id.

         B. Testimony at the First Hearing

         On March 13, 2008, an ALJ held a hearing, which plaintiff and his counsel attended. (Tr. 22-37) That ALJ noted that plaintiff was receiving non-service connected pension benefits from the VA. (Tr. 26) Plaintiff testified that he has lived with his parents since he was discharged from the military in 1992. (Tr. 27) He recalled having completed the twelfth grade and having been enrolled in regular education classes. Id.

         Plaintiff testified that he is prevented from working because of his lower back and his right knee. (Tr. 29) He stated that, " it seem[s] like if I sit down or stand up, like for a[n] hour, like I feel pains going down my--like pinching nerves or something going down my left leg on the side of my right leg." Id. Plaintiff testified that he had been suffering from painful condition for " five to six years," and that he was receiving treatment for it at the VA hospital. Id.

         Plaintiff testified that, other than sitting and standing, no other activities affect the pain in his lower back or right leg. Id. He also testified that bending " sometimes" exacerbates his condition. Id. He also testified that his knee would hurt if he had to kneel or crouch, though not his back. Id. He testified that reaching in front of him would not cause him back pain, but reaching overhead would " sometimes" cause him lower back pain. (Tr. 30)

         According to plaintiff, walking does not increase his back pain, though lifting items does. Id. Plaintiff admitted being able to sit or stand for an hour at a time. He also said that he lays down " as much as possible" during the day " because [he] just [doesn't] feel like going [any]where." Id. Plaintiff testified that lying down does not decrease the pain in his back, nor does any other activity. (Tr. 31) He had declined the offer of surgery for his back condition because he was " scared a little," after having seen the negative results of his father's back surgeries. Id.

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          Plaintiff testified that if he bends his right knee it will " pop," causing him pain. (Tr. 31-32) Plaintiff estimated that he can only walk a distance of eight feet because of his knee condition. (Tr. 32) When his knee begins to hurt, he sits down to " exercise it a little bit" for ten to fifteen minutes. (Tr. 33) Despite having testified that he can stand for up to an hour (Tr. 29), plaintiff later testified that, because of his knee condition, he could only stand for " like 10 minutes." (Tr. 33) Plaintiff stated that he was not being treated for any conditions other than back and knee pain,. (Tr. 34) Since his pain began, he has continued to do chores around the house such as sweeping, mopping, cleaning the bathroom, and washing dishes, none of which are affected by his conditions. (Tr. 35-36) Plaintiff said that he sleeps between five and six hours per night; he does not nap during the day. (Tr. 36) He testified that his back pain is worse than his knee pain. (Tr. 36-37)

         C. Testimony at the Second Hearing

         After the Court reversed and remanded the case at the request of the parties, the ALJ held a second hearing on June 15, 2011, at which plaintiff and counsel again appeared. (Tr. 286-301) At the time of the second hearing, plaintiff was 40 years old. (Tr. 288) Plaintiff testified that he served as a tank driver in the United States Army, and he was honorably discharged in 1992. (Tr. 289) Though plaintiff had some criminal history (Tr. 289-90), the ALJ gave little weight to that history in rendering his decision. (Tr. 272-73) Plaintiff also indicated past alcohol and drug use, with the last occurrence in 2009 (Tr. 292-93); the ALJ did not consider plaintiff's substance abuse a factor material to the determination of disability, because the ALJ found plaintiff not disabled. (Tr. 274)

         Plaintiff testified that in his past janitorial and custodial work, he would lift between 75 and 100 pounds. (Tr. 290) He further testified that he had not worked since 2005, when his previous employer " laid [him] off" and then the VA awarded him non-service related disability benefits. (Tr. 291) According to plaintiff, the VA informed him that he could not work while accruing disability benefits, though without providing specific restrictions that plaintiff could recall. (Tr. 292)

         Plaintiff testified that he had been offered and had rejected surgery for his right knee. (Tr. 294) He again claimed to suffer from lower back pain and leg pain. (Tr. 295) He testified that his ability to walk, stand, and sit is affected by those conditions. Id. He claimed that his conditions are exacerbated if he sits for 30 minutes, such that his right leg will go numb about 60% of the time. Id. He also said that his lower back begins to throb if he stands for more than 40 minutes. Id. Plaintiff testified that he spends approximately 50% of his day lying down. (Tr. 296) He also testified that he can walk for up to an hour, at which point his right leg will go numb, affecting his balance. Id. Plaintiff then testified that he was taking ibuprofen and Cyclobenzaprine, which make him sleepy. Id.

         Plaintiff recalled that he suffered a " bruised" right knee bone in 2006 or 2007. (Tr. 297) Though he testified that his knee condition causes him difficulty while walking, plaintiff did not report using a knee brace, cane, or other assistive device to alleviate his pain. Id.

         Delores Gonzales, a vocational expert, provided testimony regarding the employment opportunities for an individual of plaintiff's age, education, and past relevant work who retains the capacity to lift and carry 20 pounds occasionally, 10 pounds frequently, and who requires a sit/stand option; who can occasionally climb stairs and ramps, can never climb ropes, ladders, or scaffolds, can occasionally stoop, kneel, crouch, and crawl; and who should avoid

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concentrated exposure to vibration and the hazards of unprotected heights. (Tr. 298-99) Gonzalez testified that given those restrictions, such a person would not be able to perform plaintiff's past relevant work. (Tr. 299) However, Gonzalez testified that with that RFC, such a person could work in other jobs that exist in significant numbers in the national economy. Id. Gonzalez testified that examples of such jobs would include working as an order caller or a mail clerk. Id.

         The ALJ asked Gonzalez if her testimony was consistent with the Dictionary of Occupational Titles with the exception of the sit/stand option proposed, " which is not covered by that publication." (Tr. 300) Gonzalez testified that her testimony was so consistent. Id. Counsel then inquired whether a person with those limitations would be able to work if the individual needed to lie down during the day. Id. The vocational expert testified that such a person would not be able to work, unless that person was able to lie down at lunch time. Id. Counsel did not follow up with additional questions on that subject. Id.

         D. Medical Records

         1. Pre-Application Records

         On August 23, 2004, plaintiff was seen at a primary care clinic. (Tr. 177) At that time, he was taking 10 mg of Cyclobenzaprine and 600 mg of Oxaprozin.[5] Id. Plaintiff's straight leg raise test was negative for abnormalities, and he had no spine deformity or tenderness, with a full range of motion except for lateral flexion to the right. Id. Dr. Rajesh Nair and Dr. Cory Fitch examined plaintiff. (Tr. 178-79) Dr. Fitch noted that: " patient is doing well except for his back which apparently does not hurt much of the time. Nevertheless, he continues to take one or two Flexeril (Cyclobenzaprine) tabs daily. I advised him to discontinue the Flexeril. He does not want back surgery." (Tr. 179)

         On May 2, 2005, plaintiff was seen at a walk-in clinic, where he complained of back pain, radiating to his right leg. (Tr. 174) Plaintiff complained that he can " barely get out of bed, or stand," and that the " numbness in [his] legs seems to be worsening." (Tr. 207) He stated that the ibuprofen he had been taking had not relieved his pain. Id. Yet, plaintiff was noted to have no deformity of the spine or tenderness, with a full range of motion, flexion, extension, and rotation, with the exception of limited lateral right flexion. (Tr. 174) Kamel Madaraty, M.D., noted that plaintiff's straight leg raise test was negative for abnormalities, and he had no neuro-deficiencies. Id. Moreover, plaintiff told Dr. Madaraty that " the med[ications] he takes for pain help him." (Tr. 208) As treatment, Dr. Madaraty prescribed only nonsteroidal anti-inflammatory drugs and bed rest. Id.

         On June 14, 2005, plaintiff reported to the emergency room with recurrent lower back pain that " radiated to his right leg for the last few days." (Tr. 169) Plaintiff's pained worsened with sitting up, standing, and generalized movement. (Tr. 171) He complained that the Motrin and Flexeril he had been taking were not alleviating his symptoms. Id. Plaintiff was ...

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