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Gauch v. Colvin

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

September 8, 2015

ROCKY E. GAUCH, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM AND ORDER

RONNIE L. WHITE, District Judge.

This is an action under 42 U.S.C. § 1383(c)(3) for judicial review of Defendant's final decision denying Plaintiff's application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act. For the reasons set forth below, the Court affirms the decision of the Commissioner.

I. Procedural History

On January 29, 2011, Plaintiff protectively filed an application for SSI alleging disability beginning November 18, 2009 due to a hole in his heart, high blood pressure, back pain, shoulder pain, fatigue, and depression. (Tr. 11, 79, 144-51) The application was denied, and Plaintiff filed a request for a hearing before an Administrative Law Judge ("ALJ"). (Tr. 69-70, 79-83, 87-88) On March 5, 2013, Plaintiff appeared and testified at a hearing before the ALJ. (Tr. 28-67) On March 29, 2013, the ALJ determined that Plaintiff had not been under a disability since January 29, 2011, the date he filed his application. (Tr. 11-23) Plaintiff then filed a request for review, and on July 21, 2014, the Appeals Council denied Plaintiff's request. (Tr. 1-3) Thus, the decision of the ALJ stands as the final decision of the Commissioner.

II. Evidence Before the ALJ

At the hearing, Plaintiff was represented by counsel. Plaintiff's attorney first requested that Plaintiff undergo an IQ test to determine whether Plaintiff met the listing requirements of 12.05C for deficits of adaptive functioning. Plaintiff testified that he last worked in construction in 2008. He stopped working because he could no longer lift shingles. Plaintiff stated that he had an accident. He was married with two children, ages 23 and 22. Plaintiff weighed 212 pounds and measured 5 feet 9 ½ inches. He had gained weight because he was unable to exercise. Plaintiff lived in an apartment with his wife, who worked taking care of handicapped persons. Plaintiff completed the ninth grade. He attended special education classes in high school. Over the past 15 years, Plaintiff only worked in construction as a carpenter. (Tr. 30-37)

Plaintiff complained of headaches, which he experienced two to three times a month. They lasted about two hours, and Plaintiff would take a pain pill and lay down for two to three hours to relieve the pain. He further testified that his left shoulder sometimes gave out. He experienced shoulder pain when lifting his arm above his head. If he kept his arm elevated too long, his arm went numb. He could lift about 10 pounds with that arm before it began hurting. With regard to Plaintiff's back, he testified that he had constant pain in his lower back since he fell out of tree five years ago. The pain radiated down both legs and caused painful tingling. The pain and tingling went down to his knees about three times a day and lasted for about an hour at a time. Plaintiff sat down until the pain went away. He tried rubbing the cramps for about 20 minutes each time. He also used Icy Hot on his legs. Plaintiff used an Icy Hot patch on his back twice a day. He also took Flexeril and Tramadol, which helped relieve the pain. In addition, Plaintiff's feet swelled once or twice a week. He elevated his feet four times a day, which helped about 50 percent. Plaintiff spent the day sitting in a recliner with his legs elevated. When his feet were swollen, his socks left marks on his feet and ankles, and he experienced tingling. Plaintiff was able to get free or reduced health care because he did not receive Medicaid. (Tr. 37-44)

Plaintiff further testified that was treated by Dr. Gwan-Nulla, who assessed his physical problems and mental health issues. Plaintiff took Zoloft for bipolar disorder. His mental issues caused anger and depression. He felt down about five or six days a week. Two to three days a week, he was in so much pain and felt so depressed that he stayed in bed. He experienced two anxiety attacks in a five-year span. He felt suicidal when he took Cymbalta but did not feel that way currently. (Tr. 44-45)

In addition, Plaintiff stated that he spent about four to six hours in his recliner between the hours of 8:00 AM and 5:00 PM. He lay in bed and took naps about two to three times a week due to pain. Plaintiff previously drank a lot of alcohol but currently only drank about two beers a month. His doctor stated that if Plaintiff did not stop drinking so much he would die. He did not have side effects from his medications. (Tr. 45-47)

Plaintiff testified that he could drive about 30 minutes before needing to stop and stretch until his legs stopped tingling. His wife did the shopping, but he sometimes joined her if she was just grabbing a few things. He could be in the store for about 10 to 15 minutes. Plaintiff was able to do the dishes for about 20 minutes but would then need to sit down for about 20 or 30 minutes. He could sweep the floor with a broom and vacuum for about five minutes each before experiencing tingling and cramping. His wife helped him put on socks about three or four times a week. Plaintiff took showers because he was unable to take a bath. He woke up two to three times a night due to pain. During the day, Plaintiff spent his time sitting around the house and doing what he could. Plaintiff believed he could sit comfortably in a chair for about 45 minutes to an hour about five times during a workday. On a good day, he could stand comfortably for two hours at a time, but on a bad day he could only stand for about an hour before needing to sit or lie down. Plaintiff stated that he could lift 20 pounds at the most. He could squat, bend over, and get up, but not without pain. (Tr. 48-52)

The ALJ questioned Plaintiff about his past work experience. Plaintiff testified that he worked for KB Homes for 15 years cutting vinyl siding. Plaintiff measured and cut at straight and minor angles using a tape measure, pencil, and hand clippers. He stated that he no longer had the strength to perform this work. Plaintiff also worked as a roofer. He brought shingles up a few at a time to the workers on the rooftop. Plaintiff quit that job due to pain. He next worked for a printing company but testified that he could no longer do that work because of the heat and the lifting. (Tr. 52-55)

In addition, Plaintiff testified that he could only walk 200 yards before needing to take a break due to tightness and numbness in his legs and back. However, his doctor recommended that he walk on a daily basis. Plaintiff further stated that he had trouble reading. He took three tries to get his driver's permit the first time because he had difficulty reading the test. The examiner read the test to him, and Plaintiff passed the test on the third try. His wife read the mail because he could not read big words and read at the third grade level. (Tr. 56-59)

A vocational expert ("VE") also testified at the hearing. The VE stated that Plaintiff's past job as a roofer was heavy work and unskilled. His job as a carpenter helper was heavy and unskilled work. Plaintiff had also worked as a manufacturing helper, which was medium, unskilled work. The ALJ then asked the VE to assume an individual that was Plaintiff's age and had the same education and work experience. The hypothetical person could perform the full range of light work but was limited to occasional stooping, as well as simple, routine, and repetitive tasks with no production rate or pace work. The VE testified that the individual could not return to any of Plaintiff's past jobs. However, the person could work as a light cleaner or housekeeper, light laundry worker. The individual could also perform light machine tending jobs. (Tr. 59-63)

The ALJ then reexamined Plaintiff about a prior job at Mike's Construction. Plaintiff stated that he was able to keep pace with some of the jobs but not all when he was in good health. The VE then testified that an employer would not tolerate a worker that was unable to maintain an appropriate pace any more than 10 percent of the working time. In addition, employers only tolerated two unexcused or unscheduled absences a month. (Tr. 63-64)

Plaintiff's attorney also presented a hypothetical to the VE, asking her to assume the first hypothetical with the addition of lifting and carrying less than 10 pounds occasionally and frequently. The VE testified the lifting restriction would eliminate all the jobs she previously mentioned. Further, if standing and/or walking was limited to less than two hours in an eight-hour workday, the light jobs would be eliminated. Assuming the individual could never climb ramps, stairs, ladders, ropes, scaffolds and could never balance, kneel, crouch, crawl, or stoop, the jobs the VE testified to would be removed. Finally, if the person had a first grade reading level, the individual could still perform the light jobs because reading was not part of the jobs. (Tr. 64-65)

At the close of the hearing, the ALJ found no reason to order an IQ test. The ALJ reasoned that the report from Plaintiff's doctor was sufficient. (Tr. 65-66)

In a Function Report - Adult, Plaintiff reported that during the day, his wife put his clothes out and he got dressed when he woke up. He ate breakfast and watched TV. His wife made him lunch around 12:30 PM, after which he walked around the house for exercise. He watched TV until supper and then went to bed. Plaintiff stated that he woke up four or five times a night unable to breathe. His wife helped with his personal care. He sometimes became depressed and did not want to leave his bedroom. Plaintiff did not cook because he would become short of breath and needed to sit down. He did not perform house or yard work. While he could go out alone, he chose not to because he did not want to fall. Plaintiff was able to shop for food, clothes, and personal care items with assistance. He enjoyed watching TV and playing with his grandkids. He spent time with family three days a week, and he attended church on Sundays. He sometimes flipped out and screamed. His conditions affected his ability to lift, squat, bend, stand, reach, walk, kneel, talk, stair climb, remember, complete tasks, concentrate, understand, follow instructions, use his hands, and get along with others. Plaintiff believed he could walk 40 feet before needing to sit for 10 to 15 minutes. He was fired from a construction job for trying to throw a co-worker off the roof. He stated that he was angry all the time and was afraid of falling and hurting himself. (Tr. 190-96)

Plaintiff's niece, Jeannie Zumwalt, completed a Function Report Adult - Third Party. She stated that she spent two hours a day with Plaintiff watching TV and talking. Ms. Zumwalt noted that Plaintiff sat around and watched TV all day until dark. He was tired because he was up and down all night. Ms. Zumwalt further stated that she knew Plaintiff was depressed because he wouldn't shave or bathe. His wife reminded him to take his medication. Plaintiff did not cook meals or perform house or yard work. Plaintiff could go out alone but preferred to have someone with him. He shopped for home goods and food with assistance. Ms. Zumwalt also reported that being around a lot of people made him mad, and he did not talk or socialize to many people anymore. His conditions affected his ability to lift, sit, stair climb, understand, squat, bend, follow instructions, stand, reach, complete tasks, get along with others, walk, remember, and concentrate. In addition, he could lift only 10 pounds. He became short of breath when walking and became light headed if he stood too long. He could only walk 20 to 30 feet before needing to rest for 10 minutes. Plaintiff became angry under stress and became depressed frequently. (Tr. 181-88)

Ms. Zumwalt completed a second form indicating that Plaintiff could "absolutely not" work due to his blood pressure, weight, and mental state. She also indicated that Plaintiff experienced pain in his back, legs, shoulder, lungs, and stomach. He was always ...


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