United States District Court, E.D. Missouri, Northern Division
MEMORANDUM AND ORDER
L. WHITE, UNITED STATES DISTRICT JUDGE
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.
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).
Decision of 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.
following is a summary of relevant evidence before the ALJ.
attorney stated that Burkhalter is disabled due to
degenerative disc disease, as well as neck and shoulder
issues. (Tr. 35-36).
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).
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.
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.
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.
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.
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).
pain medications help only a "certain percentage."
(Tr. 47-48). He does not have many side effects from the
medications. (Tr. 48).
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).
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
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).
smokes one pack of cigarettes per day. (Tr. 51). He last used
methamphetamines in 1996 and last used alcohol seven years
ago. (Tr. 51).
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).
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).
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).
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.
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 ...