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Brinkley v. Colvin

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

August 30, 2016

BRYAN KEITH BRINKLEY, SR., Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          RONNIE L. WHITE UNITED STATES DISTRICT JUDGE.

         This is an action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for judicial review of Defendant's final decision denying Plaintiffs applications for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act and for Supplemental Security Income ("SSI") under Title XVI of the Act. For the reasons set forth below, the Court affirms the decision of the Commissioner.

         I. Procedural History

         On June 24, 2013, Plaintiff filed an application for a period of disability and Disability Insurance Benefits and protectively filed an application for Supplemental Security Income. (Tr. 14, 188-99) Plaintiff alleged that he became unable to work on December 16, 2012 due to degenerative disk disease, high blood pressure, bulging disk, arthritis, depression, and anxiety. (Tr. 116, 188, 193) The applications were denied, and Plaintiff filed a request for a hearing before an Administrative Law Judge ("ALJ"). (Tr. 96-129) On June 9, 2014, Plaintiff testified before an ALJ. (Tr. 32-80) On October 2, 2014, the ALJ determined that Plaintiff had not been under a disability from December 16, 2012, through the date of the decision. (Tr. 14-27) Plaintiff then filed a request for review, and on April 24, 2015, the Appeals Council denied said 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 June 9, 2014 hearing before the ALJ via video teleconference, Plaintiff was represented by counsel. Upon examination by the ALJ, Plaintiff testified that he had a 10th grade education and was able to read, write, and understand English. Counsel for Plaintiff indicated that he would submit additional medical records and results of an MRI scheduled the next day. The ALJ noted that Plaintiff used a cane. Plaintiff testified that he could not walk more than 15 steps without the cane, which was prescribed by his doctor, a general practitioner. Plaintiff had a driver's license but no longer drove because his legs started going numb, and it hurt to move or twist his neck. Plaintiff stated that when he moved his neck from side to side, pain shot down his spine into his back and hips. (Tr. 34-40)

         Plaintiffs counsel provided an opening statement, alleging that Plaintiff should be awarded disability benefits due to several severe conditions, including displacement of the thoracic intervertebral disks, degenerative changes in the thoracic spine, lumbar degenerative disk disease with a congenital partial fusion of Tl 1 to LI, spinal canal stenosis and bilateral neuroforaminal narrowing, numbness and tingling in legs, and depression. Counsel stated that Plaintiff was unable to return to his past work as an auto mechanic, and he was unable to perform any other job on a regular basis. (Tr. 40-42)

         The ALJ further questioned Plaintiff, who testified that his wife worked and supported five children. In addition to working as a mechanic, Plaintiff worked for a roofing company and a painting company. However, those jobs were excluded as past work because more than 15 years had passed since he held the positions. Plaintiff worked as an auto technician for Midas, Access Auto, and Big John's between 2003 and March of 2012. (Tr. 42-44)

         Plaintiff further testified that he could sit for 15 minutes before needing to switch positions from hip to hip. He sometimes needed to stand up or lay down. Plaintiff opined he could stand for 20 minutes at the most. He could walk 15 to 20 steps without his cane. Plaintiff stated he was unable to crouch or move around on his hands and knees. However, he was able to reach in all directions with both arms. Plaintiff opined that he could lift five to eight pounds with both hands. He could push a grocery cart by leaning on it, but his feet and ankles tingled after walking, standing, or sitting for 15 minutes. He was able to use his hands and fingers. Plaintiff testified that he took blood pressure medication; Zoloft for depression and anxiety; and Gabapentin and a Lidocaine patch for nerve pain. (Tr. 44-48)

         Plaintiff explained to the ALJ that he was unable to work due to pain and discomfort. He needed to get up and stretch every 20 minutes, and he could barely focus. In addition, his medications had side-effects which caused drowsiness. Plaintiff stated that he did not shop; instead his wife and children did all the shopping. Plaintiff was able to use a computer but only for about 10 to 15 minutes a day. (Tr. 49-50)

         Plaintiffs attorney also examined Plaintiff regarding his impairments. Plaintiff stated that he needed to lay down five to 6 times a day for an hour or two. Further, he testified that he had trouble sleeping at night. He slept only four to five hours, and planned to undergo a sleep study to test for sleep apnea. Plaintiff further testified that the pain in his back and his legs ranged from 7 to 8 daily, on a scale of zero to 10. His pain level increased if he pushed himself too hard or lifted something too heavy. To relieve pain, Plaintiff stretched on the bed or had someone rub his back. He could sit for 15 minutes before needing to get up or lay down for 30 to 45 minutes before sitting again. Plaintiff received injections for back pain. He tried physical therapy, but the pain was too severe. He had discussed surgery with his doctor, a neurosurgeon, which would entail replacing his LI disk in his lumbar region. However, surgeons from Washington University told Plaintiff that they saw a bulging disk in his lumbar region but did not understand why he had so much pain in his back. They recommended that Plaintiff return to his primary care physician. (Tr. 50-54)

         Plaintiff further testified that he experienced pain in his legs, more on the right than the left. He used a cane every day over the past year. During a typical day, Plaintiff struggled to get out of bed and needed help getting dressed. He ate something and tried to do a little chore. Plaintiff would take a break and rest for a bit, try to do something else to keep busy, and then take another break. He described his day as going from chair to bed all day. Plaintiff did not perform yard work. He stated that he took medication for depression. He had become more secluded and did not want to go outside. Plaintiff was no longer sociable. He did not go to church or participate in outside activities. He sometimes attended his children's school activities. Zoloft helped his depression but made him drowsy. Plaintiff testified that he experienced 15 to 20 bad days per month due to depression. A bad day included "beating" himself up over not being able to walk, work, or take care of his family. He watched the bills pile up and his life crash around him. Plaintiff felt helpless. (Tr. 54-56)

         Plaintiff left his last job as an automobile technician after he went to do a job and felt a pop in his back. The incident occurred December of 2012. Plaintiff received a steroid injection after but quit working when the injection did not help. Plaintiff further testified to experiencing pain in his hips and pelvis every day. The surgeon opined that the pain was due to his LI disk. Plaintiff was not scheduled to see the surgeon again because Plaintiff did not have adequate insurance or sufficient funds. Plaintiff did not believe he could return to his past work or any other jobs. (Tr. 56-58)

         A vocational expert ("VE"), Denise Waddell, also testified at the hearing. The VE testified that Plaintiff previously worked as an auto mechanic, which was a skilled position with a medium exertional level. The ALJ asked the VE to consider Plaintiffs age of 39 on the alleged onset date, 10th grade education, and background. The ALJ also posed a hypothetical question to the VE, asking her to consider a hypothetical person who could lift 20 pounds occasionally and 10 pounds frequently; sit six hours in an eight-hour day; and stand and walk six hours in an eight-hour day. The individual had no limitations on the use of hand and arm controls, foot and leg controls, feeling, fingering, handling, and reaching. However, he had occasional limitations with regard to reaching overhead; climbing ladders, ropes, or scaffold; climbing ramps or stairs; balancing; stooping; kneeling; crouching; crawling; and bending. The individual had no limitations on chemicals, fumes, dust, dog or cat dander, mold, or extremes of temperature. However, he needed to avoid all unprotected heights, hazardous moving machinery, and industrial whole-body vibrations. Nonexertional limitations included simple, repetitive tasks at the unskilled, skilled, or semi-skilled levels; only brief and superficial interaction with the general public, supervisors, and coworkers; and working better with things rather than people. He had no established limitations on concentration, loss of productivity, or routine changes in the work setting. (Tr. 58-64)

         Given this hypothetical, the VE testified that the person could not perform Plaintiffs past work, either per the Dictionary of Occupational Titles ("DOT") or as Plaintiff performed it. However, the individual could perform unskilled work at the light exertional level. These jobs included bench assembler, folding machine operator, and collator operator. Her testimony was consistent with the DOT other than the nonexertional limitations. The VE stated that she had 28 years of experience, and the jobs were consistent with the nonexertional portion of the hypothetical. (Tr. 64-65)

         The second hypothetical asked the VE to assume a person that could sit for only 15 minutes before needing to change positions; sit for 20 minutes before changing positons; and walk 20 steps without a cane. The sit-stand option would allow the person to stand and stretch at the work station for 15 to 20 minutes without losing productivity and without being off-task. Further, the use of hand and arm controls, foot and leg controls, feeling, fingering, handling, and reaching would be reduced to frequent. The hypothetical individual could never climb ladders, ropes, or scaffold. He could occasionally climb ramps and stairs, balance, stoop, and bend. However, the person could never kneel, crouch, or crawl. The individual had no limitations on chemicals, fumes, dust, dog or cat dander, or extremes of temperature. He needed to avoid all unprotected heights, hazardous moving machinery, and industrial whole-body vibrations. Due to pain and discomfort, the hypothetical person could do only simple, repetitive tasks at the unskilled, skilled, or semi-skilled level. He was occasionally able to do work in the presence of the general public, which was brief and superficial. He could occasionally interact with the general public, supervisors, and coworkers, but he worked better with things rather than people. Further, because of pain and discomfort, the individual would be off task 8 to 10 percent of the workday with a loss of productivity of 8 to 10 percent. He could take normal breaks and only occasionally make routine changes in the work setting. (Tr. 65-66)

         In light of this hypothetical, the VE stated that the only remaining job would be bench assembler. The other jobs did not allow for changing of positions. However, the VE cited two new examples of jobs which the person could perform at the unskilled, light level, including electrical assembler and router. The VE based her knowledge of the sit-stand option in these positions on her 28 years of experience in job placement and job analyses concerning these exact jobs. (Tr. 67-68)

         In the third hypothetical question, the ALJ asked the VE to assume the person was limited to lifting and carrying eight pounds maximum, five pounds or less frequently. He could sit six hours in an eight-hour day, stand and walk six hours in an eight-hour work day, and utilize the same sit-stand option in the second hypothetical. In addition, the use of hand and foot controls remained at the frequent status, but reaching overhead was limited to occasional. The individual could occasionally balance and stoop; never kneel, crouch, crawl or bend. The ALJ posed the same hypothetical as number two with regard to simple and repetitive work, as well as social interaction. Further, due to pain and discomfort, the person would be off task 14 percent of the time with the ability to make routine changes in the work setting only occasionally. The hypothetical individual required extra breaks to stand and stretch away from the work station that would take him off task 14 percent of the workday with a 14 percent loss of productivity. In response to the hypothetical, the VE testified that the person would not be able to perform any of the jobs previously indicated. (Tr. 68-69)

         Counsel for Plaintiff also questioned the VE. To the individual in hypothetical number two, counsel added the limitation of lying down for 45 minutes at a time in addition to regular breaks. The VE stated that such limitation would preclude the identified jobs. Additionally, the VE testified that the most a worker could be off task and keep his job would be 10 percent. Further, an employer would only tolerate one absence per month. (Tr. 70-71)

         Plaintiffs attorney then asked the VE to assume a person requiring a sit-stand option every 15 to 20 minutes without a loss of production, and requiring a reduction in occasional postural activities and reduction to frequent fingering for hands, arms, foot, and leg controls. Counsel then asked if the router position could still be performed without the sit-stand option. The VE stated that it could still be performed, as well as the electrical ...


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