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Whitney v. Berryhill

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

January 25, 2017

JERRY WHITNEY, Plaintiff,
v.
NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          PATRICIA L. COHEN, UNITED STATES MAGISTRATE JUDGE

         Jerry Whitney (“Plaintiff”) seeks review of the decision of the Social Security Commissioner, Nancy Berryhill, denying his application for Supplemental Security Income under the Social Security Act.[2] The Court has reviewed the parties' briefs and the entire administrative record, including the hearing transcript and medical evidence. For the reasons set forth below, the case is reversed and remanded.

         I. Background and Procedural History

         On December 8, 2011, Plaintiff filed an application for Supplemental Security Income alleging that he was disabled as of January 1, 2007 as a result of “pinched nerve in lower back, arthritis, depression, anxiety, 11th rib broken, right ankle fractor [sic], nose broken, low blood pressure.”[3] (Tr. 161-66 209-18). The Social Security Administration (SSA) denied Plaintiff's claims, and he filed a timely request for a hearing before an administrative law judge (ALJ). (Tr. 60-64, 65-66).

         The SSA granted Plaintiff's request for review, and an ALJ conducted a hearing on January 1, 2014.[4] (Tr. 60-64, 40-53). At the hearing, Plaintiff testified that he was fifty-nine years old and had an eighth grade education and a history of drug and alcohol abuse. (Tr. 40). Plaintiff stated that he received food stamps and he was living “with a friend right now. . . . I was homeless up until then.” (Tr. 41). Plaintiff testified that he was able to read “a little” and walk two blocks without an assistive device. (Tr. 44). Plaintiff explained that he ceased wearing his medical boot because “there was too much pressure on it, and beside [sic], it had worn out, and I didn't think to go back and have them to reschedule me another one.” (Tr. 42-43). Plaintiff further stated: “I've been trying to make it work on my own. I have a - a pusher that allows…that helps me when I'm out and about.” (Tr. 43). Plaintiff's counsel stipulated that Plaintiff “is able to do a full range of medium work, except for the mental.” (Id.).

         A vocational expert (VE) also testified at the administrative hearing. (Tr. 46-53). The ALJ asked the VE to consider an hypothetical individual with Plaintiff's age, education, and background, including a history of incarceration and homelessness, who was “able to do simple, repetitive, unskilled tasks; brief and occasional superficial interaction with the general public; frequent interaction with supervisors and coworkers; working better with things rather than people; time off task, 2 percent of the work day; loss of productivity of 2 percent; and able to respond to routine changes, occasionally, in the work setting.” (Tr. 48-49). The VE testified that such an individual could work as a dining room attendant, warehouse worker, or janitor. (Id.). The VE affirmed that her testimony was consistent with the Dictionary of Occupational Titles (DOT) and Occupational Handbook “except for the time off task and loss of productivity, ” which was “based on [her] experience having done extensive job analysis of placements over [her] years of work.” (Tr. 49-50).

         In a decision dated March 11, 2015, the ALJ applied the five-step evaluation process set forth in 20 C.F.R. § 416.912(d)[5] and found that Plaintiff “has not been under a disability within the meaning of the Social Security Act since December 8, 2011, the date the application was filed.” (Tr. 18-36). The ALJ found that Plaintiff, who was fifty-six years of age on the date he filed the application, had the severe impairment of borderline intellectual functioning and the non-severe impairments of a right foot fracture and arthritis in his lumbar spine. (Tr. 21).

         After reviewing Plaintiff's testimony and medical records, the ALJ determined that Plaintiff's “statements concerning the intensity, persistence and limiting effects of these symptoms are not credible[.]” (Tr. 24). The ALJ found that Plaintiff had the residual functional capacity (RFC) to

perform medium work as defined in 20 CFR 416.967(c) except the claimant can understand, remember, and carry out simple, repetitive, and unskilled tasks, interact occasionally, briefly, and superficially with the general public and frequently with supervisors and coworkers; work with things instead of people; stay on-task for at least 98% of the workday with no more than a 2% loss in productivity; and occasionally respond to routine changes in the work setting.

(Tr. 22).

         The ALJ found that Plaintiff could not perform his past relevant work as an industrial cleaner because “an industrial cleaner generally needs to perform at a level 2 reasoning and language development level.” (Tr. 29). The ALJ explained: “This requires carrying out detailed but uninvolved instructions and reading at a slightly complex level. The undersigned does not find this compatible with the residual functional capacity noted above.” (Id.). However, the ALJ found that Plaintiff could perform other jobs and was, therefore, not disabled. (Tr. 30).

         Plaintiff filed a request for review of the ALJ's decision with the SSA Appeals Council, which denied review on April 30, 2015. (Tr. 12, 1-6). Plaintiff has exhausted all administrative remedies, and the ALJ's decision stands as the SSA's final decision. Sims v. Apfel, 530 U.S. 103, 106-07 (2000).

         II. Standard of Review

         A court must affirm an ALJ's decision if it is supported by substantial evidence. 42 U.S.C. § 405(g). “Substantial evidence ‘is less than a preponderance, but enough so that a reasonable mind might find it adequate to support the conclusion.'” Cruze v. Chater, 85 F.3d 1320, 1323 (8th Cir. 1996) (quoting Boerst v. Shalala, 2 F.3d 249, 250 (8th Cir. 1993)). In determining whether the evidence is substantial, a court considers evidence that both supports and detracts from the Commissioner's decision. Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009). However, a court “do[es] not reweigh the evidence presented to the ALJ and [it] defer[s] to the ALJ's determinations regarding the credibility of testimony, as long as those determinations are supported by good reason and substantial evidence.” Renstrue v. Astrue, 680 F.3d 1057, 1064 (8th Cir. 2012) (quoting Gonzales v. Barnhart, 465 F.3d 890, 894 (8th Cir. 2006)).

         “If, after reviewing the record, the court finds it is possible to draw two inconsistent positions from the evidence and one of those positions represents the ALJ's findings, the court must affirm the ALJ's decision.” Partee v. Astrue, 638 F.3d 860, 863 (8th Cir. 2011) (quoting Goff v. Barnhart, 421 F.3d 785, 789 (8th Cir. 2005)). The Eighth Circuit has repeatedly held that a court should “defer heavily to the findings and conclusions” of the Social Security Administration. Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir. 2010); Howard v. Massanari, 255 F.3d 577, 581 (8th Cir. 2001).

         III. Discussion

         Plaintiff claims that substantial evidence does not support the ALJ's determination that he is not disabled. Plaintiff asserts the ALJ erred in: (1) finding that his foot fracture was a non-severe impairment; (2) failing to find his foot fracture an “additional and significant work-related limitation of function” for purposes of Listing 12.05C; (3) relying upon the VE's testimony that Plaintiff could perform jobs requiring level two reasoning and language abilities; and (4) failing to weigh the state agency consultant's medical opinion. (ECF No. 14). In response, Defendant asserts that the ALJ: (1) properly found that Plaintiff's foot fracture was a non-severe impairment and his impairments did not satisfy Listing 12.05(C); (2) properly relied on the VE's testimony; and (3) did not err in failing to discuss the state agency consultant's medical opinion. (ECF No. 19).

         A. Step 2 - severity of foot injury

         Plaintiff first argues that the ALJ failed to properly consider his foot fracture at step two of the sequential evaluation. Defendant counters that the lack of treatment supported the ALJ's determination that Plaintiff's foot fracture was non-severe.

         At step two of the evaluation process, the ALJ must determine if a claimant suffers from a severe impairment. Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007). See also 20 C.F.R. § 416.920(a)(4)(ii). To demonstrate that an impairment is severe, a claimant must show that he has (1) a medically determinable impairment or combination of impairments, which (2) “significantly limits [his] physical or mental ability to do basic work activities, ” without regard to age, education, or work experience. 20 C.F.R. §§ 416.920(a)(4)(ii), (c); 416.921(a). An impairment “is not severe if it does not significantly limit [the claimant's] physical or mental ability to do basic work activities.” 20 C.F.R. § 416.921(a). See also Kirby, 500 F.3d at 707 (“An impairment is not severe if it amounts only to a slight abnormality that would not significantly limit the claimant's physical or mental ability to do basic work activities.”). Although a claimant has “the burden of showing a severe impairment that significantly limited [his] physical or mental ability to perform basic work activities[, ]…the burden of a claimant at this stage of the analysis is not great.” Caviness v. Massanari, 250 F.3d 603, 605 (8th Cir. 2001). See also Kirby, 500 F.3d at 708 (“Severity is not an onerous requirement for the claimant to meet, but it is also not a toothless standard.”).

         At the hearing, Plaintiff appeared without an assistive device and testified that he could walk approximately two blocks without one. (Tr. 44). When the ALJ asked Plaintiff why he did not “wear the boot so your foot could get better quicker?, ” Plaintiff answered, “[I]t did pretty well without - there was too much pressure on it, and beside [sic], it had worn out, and I didn't think to go back and have them to reschedule me another one.” (Tr. 43). Plaintiff had not acquired a replacement boot but rather was “trying to make it work on my own” and used a “pusher” when he was “out and about.” (Id.). Plaintiff testified that a doctor at Barnes-Jewish Hospital prescribed the “pusher.” (Id.).

         Plaintiff's medical records demonstrate that he first presented to the emergency room for his foot fracture on November 29, 2011. (Tr. 562). Plaintiff stated that he was the victim of an assault and reported “pain to right foot, thinks it may have been stepped on, now difficult to walk.” (Id.). An x-ray of his foot revealed a “Lisfranc fracture-dislocation injury of the right foot with lateral subluxation of the 2nd through 4th metatarsal heads and widening of the Lisfranc joint. There are likely fractures through the bases of the first and fourth metatarsal heads. Additional fractures are also likely present . . . .” (Tr. 573-74). Plaintiff underwent open reduction and internal fixation surgery on December 2, 2011. (Tr. 625-26). He returned to the emergency room for a wound check on December 12, 2011 and the removal of his sutures on December 16, 2011. (Tr. 541-48, 709-11).

         On January 9, 2012, Plaintiff presented to the emergency room for pain in his right foot. (Tr. 686-88). Plaintiff reported that “someone stomped on [my foot] and I had to have surgery in early December. Now I ran out of my pain medication and I missed a follow up appointment because of the weather.” (Id.) The emergency room physician noted that Plaintiff “was supposed to be non-weight[-]bearing but has been out of his moon boot, ambulating.” (Tr. 690). The doctor discharged Plaintiff with instructions to wear the moon boot, use crutches, and remain non-weight-bearing. (Id.). Plaintiff received a refill of his medication at Grace Hill Neighborhood Health Services on January 20, 2012. (Tr. 676-78).

         Plaintiff did not seek further treatment for his right foot until October 22, 2012. (Tr. 680-83). Plaintiff reported “pain on the right inside inner foot” and stated that he had “been having problems since” his surgery in December 2011. (Tr. 680). A nurse's note stated: “Assistive devices: cane(s).” (Tr. 681). Plaintiff left the hospital before seeing a physician. (Tr. 681, 683). At step two of the sequential evaluation process, the ALJ reviewed the medical records relating to Plaintiff's right foot and found that the “right foot fracture do[es] not cause more than minimal limitations in the claimant's ability to perform basic work activities” and was therefore a non-severe impairment. (Tr. 20-21). In formulating Plaintiff's RFC, the ALJ discussed several reasons that are well-supported by the record for finding that Plaintiff's foot fracture had minimal effect on his ability to work. First, the ALJ noted that Plaintiff's “limited treatment for [this] impairment[] strongly supports a finding that [it] is not limiting.” (Tr. 24). The ALJ acknowledged that Plaintiff “has financial constraints which may limit his treatment, ” but concluded “the claimant is aware of low-cost to free options which are available to him, ...


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