United States District Court, E.D. Missouri, Eastern Division
MARLIN L. WALKER, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant
[Copyrighted Material Omitted]
Marlin Walker, Plaintiff: Jeffrey J. Bunten, LEAD ATTORNEY,
JEFFREY J. BUNTEN, ATTORNEY AT LAW, St. Louis, MO.
Carolyn W. Colvin, Acting Commissioner of Social Security,
Defendant: Nicholas P. Llewellyn, LEAD ATTORNEY, OFFICE OF
U.S. ATTORNEY, St. Louis, MO.
E. JACKSON, UNITED STATES DISTRICT JUDGE.
matter is before the Court for review of an adverse ruling by
the Social Security Administration.
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.
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)
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.
Evidence Before the ALJ
Disability Application Documents
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. (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)
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)
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.
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
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.
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)
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.
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)
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)
self-reported work history is sporadic. (Tr. 139) From 1989
to 1992 he
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)
point, plaintiff listed his medications as 10 mg of
Cyclobenzaprine, 30 mg of codeine, 500 mg of
Naproxen, and an unspecified dose of Demerol
(Meperidine), all for knee and back pain. (Tr. 141)
He also reported taking over-the-counter extra-strength
Tylenol for back and knee pain. Id.
Testimony at the First Hearing
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
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.
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)
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.
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)
Testimony at the Second Hearing
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)
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)
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.
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.
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
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.
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.
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. 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)
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.
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 ...