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Burkhalter v. Berryhill

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

February 28, 2017

RICHARD BURKHALTER, 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 Richard Burkhalter ("Burkhalter") for disability insurance benefits.

         I. Background

         Burkhalter filed an application for Supplemental Security Income on December 3, 2012. The Social Security Administration ("SSA") denied Burkhalter's application for benefits, and he filed a timely request for a hearing before an Administrative Law Judge ("ALJ"). The SSA granted Burkhalter's request and a hearing was held on May 7, 2014. The ALJ issued a written decision on August 9, 2014, upholding the denial of benefits. (Tr. 21-28). Burkhalter filed a timely Request for Review of Hearing Decision with the Appeals Council. The Appeals Council denied Burkhalter's Request for Review on September 17, 2015. (Tr. 1-4). The decision of the ALJ thus stands as the final decision of the Commissioner. See Sims v. Apfel, 530 U.S. 103, 107 (2000). Burkhalter filed this appeal on November 17, 2015. (ECF No. 1). Burkhalter filed a Brief in Support of his Complaint on August 29, 2016. (ECF No. 28). The Commissioner filed a Brief in Support of the Answer on November 28, 2016. (ECF No. 33).

         II. Decision of the ALJ

         The ALJ found that Burkhalter had the following severe impairments: degenerative disc disease of the lumber spine, headaches, frozen right shoulder, Meralgia paresthetica, right rotator cuff tear, and mild scoliosis and spondylosis of the spine. (Tr. 23). The ALJ, however, determined that Burkhalter 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. 24). The ALJ found that Burkhalter had the residual functional capacity ("RFC") to perform light work, as defined in 20 CFR 416.967(b) and SSR 83-10, including the ability to lift and carry up to 10 pounds frequently and 20 pounds occasionally, stand and/or walk up to 6 hours in an 8 hour workday, with the ability to alternate between sitting and standing at least every 30 minutes. The claimant could never climb ladders, ropes or scaffolds or crawl, but could occasionally climb ramps or stairs, balance, stoop, kneel and crouch. He should avoid overhead reaching with the right upper extremity, extreme cold and excessive vibration. (Tr. 24). The ALJ found that Burkhalter was unable to perform past relevant work. (Tr. 26). The ALJ determined that, based on Burkhalter's RFC, jobs exist in significant numbers in the national economy that he could perform. (Tr. 27). Consequently, the ALJ found that Burkhalter was not disabled since December 3, 2012, the date the application was filed. (Tr. 28).

         III. Administrative Record

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

         A. Hearing Testimony

         Burkhalter's attorney stated that Burkhalter is disabled due to degenerative disc disease, as well as neck and shoulder issues. (Tr. 35-36).

         Burkhalter testified on May 7, 2014, as follows:

Burkhalter is 50 years old. (Tr. 37). He is 6 feet and 2 inches, and 200 pounds, and single. (Tr. 37-38). He does not have a driver's license because of child support obligations. (Tr. 38). His girlfriend drove him ninety-five minutes, nonstop, to the hearing. (Tr. 38). He lives in an apartment with his girlfriend and her son, who is twenty-five. (Tr. 38, 39). The apartment has stairs going into it. (Tr. 39). He completed ninth grade, but did not receive his GED. (Tr. 39). He stopped working in 2010 due to lower back problems. (Tr. 39). He had no earnings between 2000 and 2007 because he was working "under the table in California." (Tr. 39). In 1999, Burkhalter worked as a marine mechanic and as a carpenter remodeling homes, a rough framer. (Tr. 40).

         Burkhalter thinks he is disabled because he is in a lot of pain and lies flat most of the day. (Tr. 40). He is in so much pain that he cannot concentrate for much of the day, even with pain medication. (Tr. 40). Burkhalter has been treated by Dr. Ryle for lower back problems. He has scoliosis and there is nothing that can be done to treat it, other than stretching. (Tr. 41). Surgery is not an option.

         He also has calcification on his spine that is pinching a nerve in his right thigh. (Tr. 42). The right thigh goes numb and Burkhalter has to rub it.

         Burkhalter usually sleeps between an hour to two hours at a time at night because he wakes up due to pain. (Tr. 42-43). To get relief from the pain, he has to stretch his back. (Tr. 43). It then takes him another half hour to get back to sleep. He has pain during the day but does not have to do the stretches as often. (Tr. 43). He can do the dishes for five to ten minutes. (Tr. 43). If he cannot complete the job, then he lies down for a while. (Tr. 43-44). He lies down on his back with his knees in the air. (Tr. 44). The more he stands, the more he has to do that stretch. He can only sit for 10 to 15 minutes before he takes a break to stretch his lower back. (Tr. 44-45). He has to sit down and grab his feet and pull to stretch his lower back. (Tr. 45). He has to stretch for 10 minutes before he can sit again. (Tr. 45). Sitting on a recliner does not help. He can lie on a couch as long as he is flat with his knees bent. (Tr. 45). He spends most of his day on his back in bed. He does not do any housework, other than dishes, or yardwork because it is too hard on his back. (Tr. 45-46).

         He has difficulty walking but does not use a cane. (Tr. 46). Walking causes him pain in his lower back. He can walk one side of a block before he has to sit down and stretch his back. (Tr. 46).

         He does not use a computer or play any computer games. (Tr. 47). He does very little shopping, only for five minutes at a time. (Tr. 47). He does not use any shopping assistant devices at the store. (Tr. 47).

         The pain medications help only a "certain percentage." (Tr. 47-48). He does not have many side effects from the medications. (Tr. 48).

         He has no formal training in carpentry. (Tr. 48). He never went to a vocational school. (Tr. 48). He has no formal training as a marine mechanic. (Tr. 48). He performed some welding when he was a marine mechanic; his father had taught him how to weld. (Tr. 48). He can not perform his past work as a carpenter or as a mechanic and welder. (Tr. 49).

         He had an operation on his right shoulder. (Tr. 49). He is right handed. He has eighty percent motion in his right shoulder. (Tr. 49). He cannot reach above his shoulder. (Tr. 50). He receives no treatment for his arm; it is as good as it will get.

         On an average day, he lies in bed eight hours a day at least. (Tr. 50). He plays no games and does not read. (Tr. 50-51).

         He smokes one pack of cigarettes per day. (Tr. 51). He last used methamphetamines in 1996 and last used alcohol seven years ago. (Tr. 51).

         He does not belong to any social or church groups. He only visits his father on a regular basis. (Tr. 51). The last two months he has gone to see his father, who is undergoing radiation therapy treatments, during the day while his brother is at work. (Tr. 52).

         Burkhalter is able to care for his personal hygiene needs. (Tr. 52). There are no weather conditions or environments that make his symptoms worse. (Tr. 54).

         Vocational expert Jerry Beltramo testified as follows:

The first hypothetical person would be the same age, education and work experience as Burkhalter, who can occasionally lift 20 pounds, frequently lift 10 pounds; can stand or walk for up to six hours and sit for up to six hours. The individual would need to alternate between sitting and standing at least every two hours. The individual could occasionally climb ramps or stairs, never climb ladders, ropes or scaffolds; occasionally stoop, kneel, crouch, and crawl. The individual would need to avoid overhead reaching with the right upper extremity and would need to avoid exposure to extreme cold. (Tr. 54-55).

         The first hypothetical person would not be able to perform any of Burkhalter's past relevant work. (Tr. 55). However, some unskilled jobs are available. The individual could perform work as a cashier II position, light work; folding machine operator, light work; power screwdriver operator, light work.

         The person in the second hypothetical would have all of the restrictions of the first individual, except this person could never crawl. (Tr. 56). This second hypothetical person could perform all ...


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