United States District Court, E.D. Missouri, Northern Division
TIMOTHY A. BENNETT, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER
PATRICIA L. COHEN UNITED STATES MAGISTRATE JUDGE.
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
Because the Court finds substantial evidence supports the
decision to deny benefits, the Court affirms the denial of
Background and Procedural History
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).
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).
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.).
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.
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).
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).
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).
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).
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).
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. (Tr. 66).
decision dated August 21, 2014, the ALJ applied the five-step
evaluation process set forth in 20 C.F.R. §§
404.1520, 416.920 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).
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
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).
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