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Stewart v. Berryhill

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

January 26, 2017

KEVIN STEWART, Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.[1]

          MEMORANDUM AND ORDER

          RONNIE L. WHITE UNITED STATES DISTRICT JUDGE.

         This is an action under 42 U.S.C. § 405(g) for judicial review of the Commissioner of Social Security's final decision denying the application of Kevin Stewart ("Stewart") for disability insurance benefits.

         I. Background

         Stewart filed an application for Supplemental Security Income on October 2, 2012. The Social Security Administration ("SSA") denied Stewart's application for benefits, and he filed a timely request for a hearing before an Administrative Law Judge ("ALJ"). The SSA granted Stewart's request and a hearing was held on March 25, 2014. The ALJ issued a written decision on May 1, 2014, upholding the denial of benefits. (Tr. 11-22). Stewart filed a timely Request for Review of Hearing Decision with the Appeals Council. (Tr. 7). The Appeals Council denied Stewart's Request for Review on September 2, 2015. (Tr. 1-3). The decision of the ALJ thus stands as the final decision of the Commissioner. See Sims v. Apfel, 530 U.S. 103, 107 (2000). Arnold filed this appeal on May 8, 2015. (ECF No. 1). Stewart filed a Brief in Support of his Complaint on February 1, 2016. (ECF No. 11). The Commissioner filed a Brief in Support of the Answer on April 27, 2017. (ECF No. 16). Stewart filed a Reply Brief on May 11, 2016. (ECF No. 17).

         II. Decision of the ALJ

         The ALJ found that Stewart had the following severe impairments: history of carpal tunnel syndrome, arthritis/tendonitis of the right shoulder, mild degenerative disc disease of the lumbar spine, anxiety and depression. (Tr. 13). The ALJ, however, determined that Stewart did not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments 20 CFR Part 404, Subpart P, Appendix 1. (Tr. 13). The ALJ found that Stewart had the residual functional capacity ("RFC") to perform light work, except for the following nonexertional limitations that further limit his ability to perfect light work: occasionally climb ramps and stairs, but should never climb ladders, ropes, or scaffolds; occasionally stoop, kneel, crouch, and crawl; limited to frequent (not constant) reaching in all directions with the right upper extremity; limited to frequent (not constant) handling and fingering bilaterally; should avoid concentrated exposure to pulmonary irritants, unprotected heights, excessive vibration, and hazardous machinery; and is limited to the performance of unskilled work only. (Tr. 15). The ALJ found that Stewart was not able to perform any past relevant work. (Tr. 20). The ALJ determined that, based on Stewart's RFC, jobs exist in significant numbers in the national economy that he could perform. (Tr. 17). Consequently, the ALJ found that Stewart was not disabled since September 18, 2012, the date the application was filed. (Tr.21).

         III. Administrative Record

         The following is a summary of relevant evidence before the ALJ.

         A. Hearing Testimony

         Stewart testified on March 25, 2014, as follows:

         Stewart is 49 years old. (Tr. 32). He completed 12th grade education. (Tr. 32). He lives alone in a camping trailer. (Tr. 32). He last worked on February 7, but that caused him to return to the hospital for 10 days because he could not walk afterwards. (Tr. 32). His most recent employment was construction work. (Tr. 33). In July 2012, Stewart fell off a ladder. (Tr. 33). Stewart had no reported income in 2006. (Tr. 33).

         Stewart's back is the main reason he cannot work. (Tr. 33). The doctors say it is arthritis in his back that causes his pain. (Tr. 33). He also has some mild disc narrowing at ¶ 4-5 and L5-Sl. (Tr. 34). Stewart also suffers from anxiety and panic attacks. (Tr. 34). He has been to the hospital several times for panic attacks. (Tr. 34). He is not receiving any mental health treatment from a mental health professional. (Tr. 34). He has problems with his right shoulder from his fall. (Tr. 34). The doctors want to do surgery but his insurance will not cover physical therapy so the doctors will not do the surgery. (Tr. 34-35). He has trouble sleeping. (Tr. 35). He takes hydrocodone and oxycodone for his pain; Xanax for anxiety and panic attacks. (Tr. 35). He obtains his medications through Medicaid and his mother pays the co-pays. (Tr. 35-36).

         He pays his bills with help from his mother. (Tr. 35).

         He smokes less than a pack a day. (Tr. 36). He watches TV and walks around a bit during the day. (Tr. 36). He does light housekeeping in his trailer and can fix himself something to eat. (Tr. 36). He has a driver's license but does not drive or have a vehicle. (Tr. 36). He can take care of his personal needs, including bathing and dressing. (Tr. 36).

         He can walk about 15 or 20 minutes before he needs to sit on an average day. (Tr. 37). He can stand for 15 minutes on an average day. (Tr. 37). He can sit for 15 minutes before he must get up and stretch. (Tr. 37). He can lift around 20 pounds. (Tr. 37). His weighs around 216 pounds and is 6'1". (Tr. 37). His medications do not take away all of the pain and the Xanax does not take away all of the anxiety but they make it "bearable." (Tr. 37).

         Stewart has carpal tunnel syndrome in both wrists but it is worst in his left wrist. (Tr. 38). He was prescribed wrist splints for both hands, but does not wear them because they do not help. (Tr. 39). Stewart's doctors recommended he receive the carpal tunnel release surgery but Stewart is too scared. (Tr. 39).

         Stewart had cancer removed from his left arm. (Tr. 40). He continues to have pain in his left arm from the surgery. (Tr. 40). His right shoulder has continuously hurt since he fell off a ladder in 2011. (Tr. 40). He cannot afford the physical therapy so he takes hydrocodone and oxycodone to treat the pain. (Tr. 41).

         He could not lift 20 pounds if he had to lift 20 pounds five days a week. (Tr. 42). He could lift a gallon of milk-around 8 pounds-every day. (Tr. 42). He has lost his ability to grasp objects because of his carpal tunnel syndrome. (Tr. 42). He drops things two or three times per week. (Tr. 43).

         Laurel Campbell, M.D., a physician at Smith Street Clinic in Sikeston, Missouri, prescribed Xanax to Stewart. (Tr. 43). Dr. Campbell diagnosed Stewart with depression and anxiety. (Tr. 43). Stewart tried counseling about 7 years ago but it was not helpful. (Tr. 43). He has crying spells or emotional outbursts bi-weekly. (Tr. 43). Stewart has constant feelings of being overwhelmed. (Tr. 44). He gets very nervous in crowds. (Tr. 44). He leaves his trailer daily to visit his neighbor, who lives about 100 feet from him. (Tr. 44). He visits his mom, who lives 4 miles away from him, on occasion. (Tr. 44). Other than his mom and his neighbor, Stewart does not like to be around people . (Tr. 45). He has gone to the hospital around 8 times over the last 4-5 years because of panic attacks. (Tr. 45-46). He has been taking Xanax for a year and a half. (Tr. 46).

         Stewart has difficulty concentrating or staying focused. (Tr. 46). He can concentrate for 10-15 minutes before he gets distracted. (Tr. 46). He has poor short-term and long-term memory. (Tr. 46).

         He has back pain in his lower back that radiates down his legs. (Tr. 47). Dr. Campbell prescribed a cane for Stewart to help his balance and with his back pain. (Tr. 47). He uses his cane every day. (Tr. 48).

         The ALJ noted that Stewart's October 2012 MRI showed no tear on his right shoulder. (Tr. 48). Stewart, however, states that the doctor said there was a tear and wanted to do surgery. (Tr. 48-49).

         Vocational expert Janice Haskert testified as follows:

         The ALJ noted that Stewart's primary profession was as a commercial painter. (Tr. 49). He previously worked for CMK Building Materials as a delivery driver. (Tr. 50). This past work as a delivery driver is classified as medium, semi-skilled work. (Tr. 50).

         Hypothetical number one assumes an individual of Stewart's age, education, and work experience, who is limited to only light exertion level work, can occasionally climb stairs and ramps, but never climbs ropes, ladders, and scaffolds, can occasionally stoop, kneel, crouch, and crawl, can reach in all directions but is limited to frequent-not constant-on the right; can reach overhead but is limited to occasionally on the right, handling and fingering is limited to frequent, not constant; individual should avoid concentrated exposure to pulmonary irritants, unprotected heights, excessive vibration, hazardous material, and unskilled work only. Haskert testified that such an individual could perform a wide range of unskilled light occupations, including inserting machine operator, shipping/receiver weigher, and bakery conveyor worker. (Tr. 51).

         Hypothetical number two assumes an individual of Stewart's age, education, work experience, who is limited to performing sedentary exertional level work, can occasionally climb stairs and ramps, but never climb ropes, ladders and scaffolds, occasionally stoop, kneel, crouch and crawl, can reach in all directions but is limited to frequent with the right upper extremity, can reach overhead but is limited to never with the right upper extremity; can handle and finger but is limited to frequent, not constant; must avoid concentrated exposure to pulmonary irritant, unprotected heights, excessive vibration, hazardous machinery; limited to performing unskilled work only, that requires no more than occasional contact with the public and coworkers; must avoid high production rate jobs (although medium and low ...


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