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Ruble v. Colvin

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

September 22, 2016

RONALD RUBLE, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          JOHN M. BODENHAUSEN UNITED STATES MAGISTRATE JUDGE.

         This action is before the Court, pursuant to the Social Security Act (“the Act”), 42 U.S.C. §§ 401, et seq., authorizing judicial review of the final decision of the Commissioner of Social Security (the “Commissioner”), following a decision that Plaintiff was not entitled to Supplemental Security Income (“SSI”) and Disability Insurance Benefits (“DIB”) under the Act. The matter is fully briefed, and for the reasons discussed below, the Commissioner's decision is affirmed. All matters are pending before the undersigned United States Magistrate Judge with consent of the parties, pursuant to 28 U.S.C. § 636(c).

         I. Procedural History & Summary of Memorandum Decision

         On October 9, 2002, Plaintiff Ronald Ruble was found disabled, beginning July 13, 2001, because of a non-union fracture of the left leg, under an application for disability insurance benefits that he filed on July 17, 2001. (Tr. 17-18)[1] On August 24, 2010, the Social Security Administration reviewed Plaintiff's claim for continuing disability, and concluded that his disability ceased on August 1, 2010. Plaintiff appealed the termination of benefits, and following a hearing, an Administrative Law Judge (“ALJ”) found on February 24, 2012, Plaintiff's severe impairments of status post lower extremity fractures and inhalation burn injuries, recurrent left foot calluses, hypertension, obstructive sleep apnea, depression, and post-traumatic stress disorder (“PTSD”) did not meet or equal the severity criteria of any listed impairment and only restricted Plaintiff to sedentary exertional level work. (Tr. 31-44) The ALJ found that Plaintiff was no longer disabled as of August 1, 2010, with his disability eligibility terminating on October 31, 2010. On March 19, 2013, the Appeals Council denied Plaintiff's request for review of the ALJ's decision. (Tr. 58-62) The decision regarding Plaintiff's continuing eligibility for benefits is not under review herein.

         On August 7, 2012, Plaintiff filed Applications for Supplemental Security Income under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381, et seq., and Disability Insurance Benefits under Title II of the Act, 42 U.S.C. §§ 401 et. seq. (Tr. 127-33, 703-08) Plaintiff claimed that his disability began on July 13, 2001, as a result of breathing problems, broken legs, back pain, reading comprehension problems, walking problems, depression, anxiety, and PTSD. On initial consideration, the Social Security Administration denied Plaintiff's claims for benefits. Plaintiff requested a hearing before an ALJ. On April 15, 2014, a hearing was held before the same ALJ who adversely decided his continuing eligibility. (Tr. 722-84) Plaintiff testified and was represented by counsel. (Id.) Vocational Expert Barbara Myers and Medical Experts Drs. Edwin L. Bryan and Thomas England, Ph.D., also testified at the hearing. (Tr. 57-60, 74-75, 113-22, 754-69) Noting that Plaintiff had alleged a disability onset date of July 13, 2001, the ALJ construed such as an implicit request to reopen the adverse February 24, 2012, decision that his disability ended on August 1, 2010. The ALJ denied the request based on the doctrine of res judicata, [2] finding the February 24, 2012, unfavorable decision “involved the same rights on the same facts and on the same issue or issues” and Plaintiff “has produced no new or material evidence or other good reason to reopen that unfavorable hearing decision.” (Tr. 18) Plaintiff does not dispute this res judicata finding.

         Accordingly, in the May 29, 2014, decision, the ALJ only addressed whether Plaintiff became disabled at any time after the February 24, 2012, decision. (Tr. 14-30) The ALJ again concluded that Plaintiff was not disabled. Plaintiff appealed. After considering the representative's brief and additional medical records, the Appeals Council found no basis for changing the ALJ's decision and denied Plaintiff's request for review on June 5, 2015. (Tr. 6-13, 201-02, 609-702) The ALJ's determination thus stands as the final decision of the Commissioner. 42 U.S.C. § 405(g).

         Plaintiff filed the instant action on August 3, 2015. Accordingly, Plaintiff has exhausted his administrative remedies and the matter is properly before this Court. Plaintiff has been represented by counsel throughout all relevant proceedings.

         In his initial brief to this Court, Plaintiff raises two issues, although these issues require the Court to consider several subsidiary matters. First, Plaintiff argues that the ALJ erred in concluding that he did not meet or equal a listing-level impairment based on Dr. Bryan's testimony and the medical record. In his initial brief, Plaintiff did not specify which listing he allegedly met, or identify which impairment or combination of impairments meets or medically equals a listing. Second, Plaintiff argues that the ALJ erred in discounting his credibility and in assessing his Residual Functional Capacity (“RFC”). The Commissioner filed a detailed brief in opposition contending that the ALJ's decision is based upon substantial evidence. In his reply brief, Plaintiff contends that the ALJ failed to make a determination as to Listing 1.04(C) (disorders of the spine) and to consider his impairments in combination. Plaintiff also argues that, in making an adverse credibility determination, the ALJ erroneously found that Plaintiff's daily activities were inconsistent with his allegations of disability.

         As explained below, the Court has considered the entire record in this matter. Because the decision of the Commissioner is supported by substantial evidence, it will be affirmed. The undersigned will first summarize the decision of the ALJ and the administrative record. Next, the undersigned will address each of the issues Plaintiff raises in this Court.

         II. Decision of the ALJ

         In a decision dated May 29, 2014, the ALJ determined that Plaintiff meets the insured status requirements of the Social Security Act through December 31, 2015. (Tr. 20) The ALJ acknowledged that the administrative framework required him to follow a five-step, sequential process in evaluating Plaintiff's claim. (Tr. 18-20) At step one, the ALJ concluded that Plaintiff had not engaged in any substantial gainful activity from February 25, 2012, (the date the ALJ issued an unfavorable decision finding his disability ceased on August 1, 2010), and that Plaintiff meets the insured status through December 31, 2015. (Tr. 20) At step two, the ALJ found Plaintiff had the following severe impairments during the relevant time period: degenerative joint disease of the lumbar spine and knees, chronic obstructive pulmonary disease, obstructive sleep apnea, recurrent foot calluses, residuals of status-post left carpal tunnel syndrome with surgical release, hypertension, ulcer, gastritis, obesity, mood disorder, PTSD, and learning disorder. (Tr. 20-24) The ALJ further concluded, however, that none of Plaintiff's impairments, either singly or in combination, significantly limited his ability to perform basic work-related activities for 12 consecutive months. (Tr. 24-25) In making his Residual Functional Capacity (“RFC”) determination, the ALJ found that Plaintiff has the capacity to perform light work, except for: lifting or carrying more than 20 pounds occasionally and 10 pounds frequently; standing or walking more than 2 hours in an 8-hour workday; sitting more than 6 hours in an 8-hour workday; standing or sitting continuously without alternating position occasionally to stretch while remaining at the work station; ambulating over unimproved terrain; operating foot controls more than occasionally; climbing ladders, ropes, or scaffolds, kneeling, or crawling; stooping or crouching more than occasionally; exposure to pulmonary irritants, extreme heat, cold, humidity, or whole body vibration; and performing more than simple, repetitive tasks with no close interaction with the general public or reading and writing. (Tr. 25-28)

         The ALJ made an adverse credibility finding regarding Plaintiff's “allegations that his impairments, either singly or in combination, produce symptoms and limitations of a severity to prevent all sustained work activity.” (Tr. 26) The ALJ also found that Plaintiff's “daily activities are inconsistent with his allegations of disabling symptoms and limitations. [Plaintiff] is able to essentially live and function independently, perform light household chores, go grocery shopping, and drive an automobile.... [Plaintiff] testified in substance that his daily activities are limited, but included household chores, mowing the lawn with a riding mower, hunting, driving, and cooking.” (Id.) In short, the ALJ concluded that Plaintiff failed to support his claim of disability with sufficient, relevant evidence. The ALJ summarized his conclusions as follows:

The objective medical evidence of record supports a finding that the [plaintiff] has impairments that impose symptoms and limitations that preclude the [plaintiff] from performing more than significantly limited range of light exertional level work activity with a sit/stand option and non-exertional postural, environmental, and mental limitations. Weighing all relevant factors, the undersigned concludes that the [plaintiff's] subjective complaints do not warrant any further limitation.

(Tr. 28) The ALJ further found that, considering Plaintiff's age, education, work experience, and residual functional capacity, there are jobs existing in significant numbers in the national economy he could perform including a collater operator and small parts assembler. (Tr. 29)

         III. Administrative Record

         The administrative record in this matter includes extensive medical records. The Court has reviewed the entire record, including the evidence relevant to the relevant time period. The following is a summary of pertinent portions of the record to provide context to the Court's decision.

         A. The Hearing Before the ALJ

         The ALJ conducted a hearing on April 15, 2014. Plaintiff was present and represented by an attorney. Also present was a Vocational Expert (“VE”), Barbara Myers, two Medical Experts, Drs. Edwin L. Bryan and Thomas England, and Braden Bremmon, Plaintiff's case manager.

         1. Plaintiff's Testimony

         Plaintiff testified primarily in response to questions posed by his attorney, with additional questions interjected by the ALJ. At the time of his hearing, Plaintiff was forty-nine years old. According to Plaintiff, his back and breathing problems prevent him from working. Plaintiff last worked as a maintenance supervisor at Farmington Prison in 2000-01.

         A pain management doctor at Advanced Pain Center has treated Plaintiff with a medication regimen of Hydrocodone, Tramadol, and Lidoderm patches. Plaintiff testified that the medications do not do much good. Plaintiff does not wear any special braces, wraps, or supports, or use a cane or crutch. Plaintiff explained that when he has to walk on unlevel ground or in the woods to hunt, he uses a stick or holds onto trees to stabilize himself.

         Plaintiff testified that he does his own household chores, cooking, cleaning, and laundry gradually throughout the day. Plaintiff cuts the grass on a riding mower but he has to take breaks. Plaintiff went deer hunting within the last year, and he shot a deer two years earlier using a rifle. Plaintiff uses a four wheeler to access the woods. Plaintiff testified that he already has his camouflage out for turkey season. Plaintiff testified that he regularly visits two to three friends, and he usually attends church on Sundays. Plaintiff indicated that he struggles when he carries a fifty pound bag of dog food. Plaintiff testified that, although it takes him longer than the average person, he can take care of his personal needs.

         Plaintiff testified that he has problems walking and going up and down stairs. Plaintiff cannot walk a city block without sitting down and taking a break. Standing or stooping hurts Plaintiff's lower back. Plaintiff's sister helped him complete some paperwork because he does not comprehend half of what he reads. Plaintiff changes positions to relieve the pain in his back.

         Dr. Harness of Highland Health is Plaintiff's primary care doctor. Plaintiff testified that he had problems completing the pulmonary function studies.

         2.Testimony of Braden Bremmon

         Mr. Braden Bremmon also testified at the hearing. Mr. Bremmon works at the Family Counseling Center as Plaintiff's case manager responsible for monitoring Plaintiff's mental stability and depression and encouraging healthy lifestyles including weight reduction. Mr. Bremmon reported that he has seen Plaintiff three times a month for the last two years. Mr. Bremmon testified that he has observed Plaintiff's gait and walk. Mr. Bremmon noted Plaintiff to be a slow, guarded and cautious walker, and that Plaintiff has difficulty walking on carpet. Mr. Bremmon noted that Plaintiff cannot complete paperwork without assistance because he lacks the necessary comprehension level and has memory problems. With respect to Plaintiff's PTSD and depression, Mr. Bremmon testified that Plaintiff has been stable since he started seeing Plaintiff.

         3.Testimony of Medical Expert

         Dr. Edwin L. Bryan is a licensed physician, board certified in internal medicine, with forty years of experience. Dr. Bryan testified based on his review of the medical records and after listening to the hearing testimony. Dr. Bryan indicated that he heard nothing inconsistent between the hearing testimony and the medical records. Dr. Bryan testified that, from about August, 2012, to the present, Plaintiff's impairments included mental impairments that limited intellectual function, PTSD, depression, and mood disorder, and Plaintiff's physical impairments included hypertension, chronic obstructive pulmonary disease worsened by smoke inhalation during a house fire, gastric ulcer with GI bleeding, carpal tunnel surgery in 2009, obesity, ongoing obstructive sleep apnea, abnormal gait, callous formation in his foot, and multi-level disc bulges with ongoing back pain as evidenced by an MRI of Plaintiff's lumbar spine on April 3, 2014. Dr. Bryan opined that Plaintiff has “a combination of impairments that grossly affect his ability to function particularly vocationally. I cannot ... fit him specifically into a listing, but I do think I can comfortably state that his impairments in combination would not permit the same physical activity previous - like his previous activity at the dart factory.” (Tr. 758) Dr. Bryan testified that he agreed with the Family Counseling Center's early findings that Plaintiff appeared incapable of sustaining gainful activity, and he would not have the capacity to perform work involving any mental activity. Dr. Bryan opined that Plaintiff's mental limitations would preclude Plaintiff's ability to perform meaningful sedentary work. Dr. Bryan concluded that, in addition to being limited to sedentary work, Plaintiff would also need to get up and move around, change positions, and stretch.

         Dr. Bryan acknowledged that the MRI report he reviewed showed Plaintiff has moderate to severe spinal stenosis, and he agreed that that type of stenosis could cause lower extremity pain. Dr. Bryan found Plaintiff's testimony regarding difficulty walking on uneven surfaces to be credible. Nonetheless, when asked about meeting muscoskeltal Listing 1.04 dealing with spinal stenosis leading to inability to ambulate effectively, Dr. Bryan opined that he could not testify that the listing is clearly met, noting that Plaintiff's inability to ambulate effectively is caused by his knees, not his spine. Dr. Bryan noted that there was no clear evidence in the extensive medical records showing Plaintiff had lumbar spinal stenosis resulting in lower extremity pain.

         4.Testimony of Psychological Expert

         Dr. Thomas England, a psychologist, found in substance that Plaintiff's mental impairments imposed mild to moderate mental limitations since 2012. Dr. England testified that the medical record shows Plaintiff's depression appears, for the most part, to respond well to Cymbalta. Dr. England opined that the record showed Plaintiff's difficulty to be a mild limitation in the area of reading, comprehension, and writing. Although a diagnosis of PTSD was established by the medical record, Dr. England noted Plaintiff had not received much treatment or counseling for that condition.

         5.Testimony of Vocational Expert

         Vocational Expert (“VE”) Ms. Barbara Myers testified at the hearing. The VE characterized Plaintiff's vocational background to include work experience as a maintenance supervisor. Plaintiff's job duties included taking contractors around a prison and monitoring the contractor's work. (Tr. 773)

         The ALJ asked the VE to assume someone similar to Plaintiff in age, education, and the same past work experience who can

lift 20 pounds on occasion, 10 pounds frequently, could stand and/or walk about two hours in an eight hour work day, could sit about six, and that the person should avoid concentrated exposure to noxious fumes, odors, dust, and gases. And also avoid concentrated exposure to extreme cold, heat, and humidity, should avoid climbing ladders, ropes, and scaffolds, and should avoid ambulating on unimproved terrain like open fields, construction sites. Avoid, what would expose him to whole body vibration. The person would be limited to only occasional stoop, bending, crouching. No kneeling or crawling, and avoid more than occasional operation of foot controls bilaterally.

(Tr. 775) The ALJ also limited the hypothetical worker “to simple and/or repetitive work that didn't require close interaction with the public. And by simple and/or repetitive, mostly working with things, no large demands on reading and writing.” (Tr. 776)

         The VE opined that such a hypothetical worker could not perform Plaintiff's past work, could perform other light and unskilled jobs such as a collator operator, a small part assembler, and a bench assembler. The VE opined that the individual could perform sedentary jobs including a laminator and a circuit board assembler. The VE indicated that if the individual would have to consistently miss two or more days a month, this would preclude competitive employment after a brief period. The VE indicated that, a further requirement that the individual would be late for work or leave early on a weekly basis, or required an additional random break, would preclude the individual from competitive employment.

         Next, the ALJ asked the VE if the individual could remain at work but because of a medical condition would be distracted and not be productive twenty percent of the day. The VE indicated that this would preclude competitive employment.

         The ALJ modified the first hypothetical by removing the not appearing for work accommodation and adding the ability to change positions briefly to stretch while remaining at the work station. The VE opined that this accommodation would not preclude the performance of the light or sedentary jobs she cited earlier.

         B. Forms Completed by Plaintiff

         In his Function Report - Adult, Plaintiff listed cooking, picking up, wiping off sinks and stove, some vacuuming, and riding a mower as his activities. (Tr. 162) Plaintiff reported being able to drive a car and a four-wheeler, to go out alone, hunt or fish on a four-wheeler, and attend church on Sundays. (Tr. 162-63)

         IV. Medical Records and Source Opinion Evidence

         A. General History

         The medical evidence in the record shows that Plaintiff has a history of degenerative joint disease, chronic obstructive pulmonary disease (“COPD”), obstructive sleep apnea, hypertension, back pain, gastritis, obesity, mood disorder, and PTSD. (Tr. 203-702) Although the Court has carefully considered all of the evidence in the administrative record in determining whether the Commissioner's adverse decision is supported by substantial evidence, only the medical records most relevant to the ALJ's decision and the issues raised by Plaintiff on this appeal are discussed.

         B. St. Louis University Hospital - Dr. Robert Burdge (Tr. 296-302)

         On July 15, 2001, Dr. Robert Burdge surgically repaired a fracture of Plaintiff's right tibial plateau. On October 11, 2001, Dr. Burdge surgically ...


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