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Bennett v. Berryhill

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

May 31, 2017

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

          MEMORANDUM AND ORDER

          PATRICIA L. COHEN UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Timothy Bennett seeks review of the decision of the Social Security Commissioner, Nancy Berryhill, denying his applications for Supplemental Security Income and disabled widower's benefits under the Social Security Act.[2] Because the Court finds substantial evidence supports the decision to deny benefits, the Court affirms the denial of Plaintiff's applications.

         I. Background and Procedural History

         In October 2012, Plaintiff filed applications for Supplemental Security Income and widower's insurance benefits alleging he was disabled as of July 1, 1996 as a result of: degenerative disc disease; “left shoulder injury with limited range of motion”; “undiagnosed pulmonary problems”; anxiety; depression; chronic pain; infection in teeth and gums; and acid reflux. (Tr. 72, 166-71, 172-73, 174-80). 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. 107-11, 114-18, 121-22).

         The SSA granted Plaintiff's request for review, and an ALJ conducted a hearing on July 31, 2014. (Tr. 31-70). At the hearing, Plaintiff testified that he was fifty-two years of age, had a ninth grade education, and had neither a GED nor vocational training. (Tr. 37, 40). Plaintiff had sole custody of his nine-year-old daughter. (Tr. 38, 55).

         Plaintiff stated that his shortness of breath and back pain prevented him from working. (Tr. 40). He last worked as a painter in the late 1990's, but stopped after he fell “and broke the ball off my shoulder and my arm was froze[n] for a couple of years there because I couldn't move my arm. . . . and then my wife became ill, I had to - to stay and take care of her until she passed.” (Tr. 41). Plaintiff did not resume work after his wife died in October 2000 because he “was in a bad depression there for a while and then I ended up getting married again and I was living off what was left of the life insurance and my…my back was really bothering me and my shoulder.” (Id.).

         Plaintiff testified that, on a typical day, he helped his daughter get ready for school. (Tr. 42). After she boarded the school bus, he took his medicine and tried “to keep the…place tidy as I can.” (Tr. 42). He met his daughter's teachers at the beginning of the school year and if she “has something at the school I go up to it.” (Tr. 43). He stated that he “sometimes” watched television and “can barely read.” (Id.). When the ALJ asked what he and his daughter “like to do together, ” Plaintiff answered that she “likes to…read to me” and they played board games and went to the park. (Tr. 44).

         Plaintiff stated he was able to dress and shower by himself. (Tr. 45). He prepared mostly microwaveable food and swept the floors. (Tr. 45, 47). He drove his car to the grocery store about twice a month and shopped for thirty minutes to an hour. (Tr. 45-46). Plaintiff usually used disposable plates and plasticware because he “can't stand that long” and clean dishes. (Tr. 46). Plaintiff's brother took care of his yard and picked up his and his daughter's laundry once a week. (Tr. 46-47). Plaintiff had not smoked cigarettes “in over two months.” (Tr. 47). Prior to quitting, he was smoking about half a pack of cigarettes per day. (Tr. 48).

         Plaintiff took Xanax, Percocet, and heart burn medication, and he used inhalers. (Tr. 48). Plaintiff believed his medications “help some of the pain, ” but they also “make me drowsy.” (Tr. 48). Plaintiff stated that he had suffered “problems with my back for 15-20 years but it just got worse” in the last five or six years. (Tr. 49-50). When the ALJ questioned Plaintiff about injections for back pain, Plaintiff explained, “My doctor is 84 years old and he's not, you know, he's - I just go in there. He does my blood pressure. He gives my [sic] medicine and he sends me out.” (Tr. 50). According to Plaintiff, he had not changed doctors because he “tried and nobody wants to take Medicaid[.]” (Id.). The only restriction placed upon him by his doctor was that he “not [] pick up anything heavy. . . . I think less than 25 pounds or whatever.” (Tr. 52).

         Plaintiff stated that, for the last few months, his leg was “going numb from my knee down to my foot” and the problem was “getting worse and worse.” (Tr. 52). Plaintiff stated that he could sit or stand for twenty to thirty minutes at a time and “can't lift much at all.” (Tr. 53-54). Plaintiff was not seeing a mental health professional, but took Xanax, which “helps calm down this - the bolts that I get.” (Tr. 53).

         When Plaintiff's counsel asked him whether he had been diagnosed with lung cancer, Plaintiff recounted a visit to the hospital during which a doctor informed him that “both of my lungs were spotted” and scheduled surgery, which he refused to undergo. (Tr. 56). Plaintiff explained, “I watched my family members, my uncles, my dad all die of cancer” and he believed that surgery hastened their deaths. (Id.). Plaintiff had difficulty breathing when walking short distances. (Tr. 57). When his counsel inquired about his left shoulder, he stated “I can't reach it above my head[.]” (Tr. 58). Plaintiff testified that his pain interfered with his sleep and he generally slept about three hours per night. (Tr. 60).

         A vocational expert also testified at the hearing. (Tr. 62-70). The ALJ asked the vocational expert to consider a hypothetical individual with the same age and education as Plaintiff and the ability to perform light work with the following limitations: occasionally climb ramps and stairs; never climb ladders, ropes, or scaffolds; frequently balance, stoop, kneel, crouch, and crawl; occasionally reach with the left upper extremity; avoid concentrated exposure to extreme heat, extreme cold, vibrations, and hazards such as dangerous machinery and unprotected heights; occasional exposure to respiratory irritant. (Tr. 62-63). The ALJ added that the hypothetical individual “is able to understand, remember and carry out simple instructions consistent with unskilled work involving tasks that can be demonstrated and do not require reading and writing to perform.” (Tr. 63). The vocational expert testified that such person could perform the jobs of assembler/small products II, garment sorter, and folding machine operator. (Tr. 64).

         When the ALJ added to the hypothetical the limitations to “unskilled work in which there are no strict production quotas. . . . In other words, work by the shift and not by the hour, ” the vocational expert stated this would eliminate the bench assembler position. (Tr. 65). However, the vocational expert testified that the hypothetical individual could perform the job of photocopying machine operator.[3] (Tr. 66).

         In a decision dated August 21, 2014, the ALJ applied the five-step evaluation process set forth in 20 C.F.R. §§ 404.1520, 416.920[4] and found that Plaintiff “has not been under a disability, as defined in the Social Security Act, from July 1, 1996, through the date of this decision[.]” (Tr. 16-26). The ALJ found that Plaintiff had the following “severe combination of impairments: chronic obstructive pulmonary disease (COPD); thoracic spondylosis; depressive disorder, NOS; anxiety; and an unspecified learning disorder.” (Tr. 16).

         After reviewing Plaintiff's testimony and medical records and finding that Plaintiff was “not entirely credible, ” the ALJ determined that Plaintiff had the residual functional capacity (RFC) to:

perform light work as defined in 20 CFR 404.1567 and 416.967(b) except that he can only occasionally climb ramps and stairs, but never climb ladders, ropes, and scaffolds; frequently balance, stoop, kneel, crouch, and crawl; is limited to occasional reaching overhead, in front, and laterally, with the left upper extremity; must avoid concentrated exposure to extreme heat, extreme cold, vibration, and hazards such as dangerous machinery and unprotected heights; is limited to no more than occasional exposure to respiratory irritants such as fumes, odors, dust, gases, and poor ventilation; is able to understand, remember, and carry out simple instructions consistent with unskilled work, where there are no strict production quotas and the individual wouldn't be subject to the demands of fast-paced production work, i.e., work by the shift, not by the hour.

         (Tr. 20). Finally, the ALJ found that Plaintiff had no past relevant work but that there were “jobs that exist in significant numbers in the national economy that the claimant can perform.” (Tr. 25-26).

         Plaintiff filed a request for review of the ALJ's decision with the SSA Appeals Council, which denied review on January 5, 2016. (Tr. 1-4). 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. ...


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