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Kemp v. Berryhill

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

August 22, 2017

DEBRA KAY KEMP, Plaintiff,
v.
NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security Defendant.

          MEMORANDUM AND ORDER

          NOELLE C. COLLINS UNITED STATES MAGISTRATE JUDGE

         This is an action under Title 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner denying the application of Debra Kay Kemp (“Plaintiff”) for Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381, et seq. Plaintiff has filed a brief in support of the Complaint (Doc. 20), Defendant has filed a brief in support of the Answer (Doc. 26), and Plaintiff has filed a Reply (Doc. 29). The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to Title 28 U.S.C. § 636(c) (Doc. 10).

         I. PROCEDURAL HISTORY

         Plaintiff filed her application for SSI on September 14, 2012 (Tr. 186-94). Plaintiff was initially denied on February 15, 2013, and she filed a Request for Hearing before an Administrative Law Judge (“ALJ”) on March 27, 2013 (Tr. 104-10, 113). After a hearing, by decision dated December 18, 2014, the ALJ found Plaintiff not disabled (Tr. 15-33). On March 16, 2016, the Appeals Council denied Plaintiff's request for review (Tr. 1-6). As such, the ALJ's decision stands as the final decision of the Commissioner.

         II. DECISION OF THE ALJ

         The ALJ determined that Plaintiff has not engaged in substantial gainful activity since September 14, 2012, the filing date of her application for SSI (Tr. 20). The ALJ found Plaintiff has the severe impairments of diabetes mellitus with diabetic retinopathy[2] and degenerative disc disease of the lumbar spine, [3] but that no impairment or combination of impairments met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (Tr. 20-22).

         After considering the entire record, the ALJ determined Plaintiff has the residual functional capacity (“RFC”) to lift and carry up to 30 pounds occasionally and 20 pounds frequently with the following limitations (Tr. 22). She is not limited in her ability to sit, can stand and walk for six hours in an eight-hour workday, can frequently balance, and can occasionally bend, stoop, kneel, crouch, crawl, and climb ramps and stairs (Id.). She needs to avoid climbing ladders, ropes, and scaffolds, and needs to avoid driving and jobs that require vision for small or fine details (Id.). She also needs to avoid exposure to extreme temperatures, wetness, high humidity, dust, gases, fumes, odors, and poor ventilation beyond a normal office or retail setting (Id.). Further, she needs to avoid unprotected heights and hazardous moving machinery (Id.). The ALJ found Plaintiff has no past relevant work (Tr. 26). The ALJ found that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform, including collator operator, folding machine operator, inserting machine operator, electrical assembler, and bench assembler (Tr. 27). Thus, the ALJ concluded that a finding of “not disabled” was appropriate (Tr. 28). Plaintiff appeals, arguing a lack of substantial evidence to support the Commissioner's decision.

         III. RELEVANT RECORDS

         Plaintiff previously applied for SSI on October 14, 2005. After a hearing, by decision dated May 14, 2008, the ALJ found Plaintiff not disabled (Tr. 74-85). The ALJ found that Plaintiff had the severe impairments of reactive airway disease and morbid obesity, and had the RFC to perform light work as defined in 20 C.F.R. § 416.967 (Tr. 80). The ALJ noted that “[x]-rays have recently shown [Plaintiff] had [sic] degenerative joint disease and degenerative disc disease of the lumbar spine, ” and that pulmonary function studies showed a reduced FEV1[4] (Tr. 79). On February 27, 2009, the Appeals Council denied Plaintiff's request for review (Tr. 86-88). Plaintiff reapplied for SSI on September 27, 2012. In her 2012 application, Plaintiff claims four different bases for her disability: diabetes, asthma, glaucoma, and back, hip, and feet problems (Tr. 207).

         Turning to the medical record for the 2012 SSI application, Plaintiff visited her treating physician, Justin LaMonda, M.D., on December 11, 2012. Dr. LaMonda diagnosed Plaintiff with, among other things, morbid obesity, asthma, chronic lower back pain, inflammation of the sacroiliac joint[5] and hips, and “[s]evere disabling weakness requiring [a] power wheelchair to get around” (Tr. 333). Dr. LaMonda noted that Plaintiff was “on the very verge of disability due to her unwillingness to get up” from her wheelchair (Id.). Further, Dr. LaMonda noted that Plaintiff had a “fully reversible cause of weakness and ha[d] no valid reason for continuing to let herself become permanently disabled by staying in the power chair all day” (Id.). Dr. LaMonda offered injection therapy to relieve Plaintiff's joint pain, but she refused treatment (Id.). Dr. LaMonda recommended physical therapy, and told Plaintiff that exercising was a matter of “life or death” (Tr. 333, 358).

         In follow-up appointments, Dr. LaMonda noted that Plaintiff had made no attempt to get out of her wheelchair, and that she would become wheelchair-bound if she does not (Tr. 358, 447, 449, 451, 456, 458). In September of 2013, Plaintiff was forced to do physical therapy in order to requalify for a power wheelchair (Tr. 445). Plaintiff reported she was in a lot of pain, but thought she was getting stronger because of the physical therapy (Id.). In November of 2013, Dr. LaMonda noted that while physical therapy put “stress and exercise on [Plaintiff's] heart, . . . [she] tolerated [it] very well” (Tr. 443). The treatment notes from December 2013 to February 2014 do not indicate that Plaintiff tried to exercise again (Tr. 411, 439, 441). In March of 2014, Dr. LaMonda maintained his opinion that Plaintiff has a “[s]evere disabling weakness requiring [a] power wheel chair to get around, ” and noted that Plaintiff was “bound to [a] power-chair” (Tr. 437).

         In a letter dated August 21, 2014, Dr. LaMonda wrote that Plaintiff is “unable to ambulate, ” “unable to propel a manual wheelchair, ” and “requires a power wheel chair for independent mobility” (Tr. 462). Further, Dr. LaMonda opined that Plaintiff “presents with weakness of all extremities” and has “limited purposeful movement of bilateral lower extremities” (Id.). Dr. LaMonda stated that “[t]he power chair is medically necessary for [Plaintiff]” (Id.).

         IV. LEGAL STANDARD

         Under the Social Security Act, the Commissioner has established a five-step process for determining whether a person is disabled. 20 C.F.R. §§ 416.920, 404.1529. “‘If a claimant fails to meet the criteria at any step in the evaluation of disability, the process ends and the claimant is determined to be not disabled.'” Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005) (quoting Eichelberger v. Barnhart, 390 F.3d 584, 590-91 (8th Cir. 2004)). In this sequential analysis, the claimant first cannot be engaged in “substantial gainful activity” to qualify for disability benefits. 20 C.F.R. §§ 416.920(b), 404.1520(b). Second, the claimant must have a severe impairment. 20 C.F.R. §§ 416.920(c), 404.1520(c). The Social Security Act defines “severe impairment” as “any impairment or combination of impairments which significantly limits [claimant's] physical or mental ability to do basic work activities. . . .” Id. “‘The sequential evaluation process may be terminated at step two only when the claimant's impairment or combination of impairments would have no more than a minimal impact on [his or] her ability to work.'” Page v. Astrue, 484 F.3d 1040, 1043 (8th Cir. 2007) (quoting Caviness v. Massanari, 250 F.3d 603, 605 (8th Cir. 2001), citing Nguyen v. Chater, 75 F.3d 429, 430-31 (8th Cir. 1996)).

         Third, the ALJ must determine whether the claimant has an impairment which meets or equals one of the impairments listed in the Regulations. 20 C.F.R. §§ 416.920(d), 404.1520(d). If the claimant has one of, or the medical equivalent of, these impairments, then the claimant is per se disabled without consideration of the claimant's age, education, or work history. Id.

         Fourth, the impairment must prevent the claimant from doing past relevant work. 20 C.F.R. §§ 416.920(f), 404.1520(f). The burden rests with the claimant at this fourth step to establish his or her RFC. Steed v. Astrue, 524 F.3d 872, 874 n.3 (8th Cir. 2008) (“Through step four of this analysis, the claimant has the burden of showing that she is disabled.”). The ALJ will review a claimant's ...


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