United States District Court, E.D. Missouri, Northern Division
SETH A. McGEE, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER
PATRICIA L. COHEN UNITED STATES MAGISTRATE JUDGE
Seth McGee seeks review of the decision of the Social
Security Commissioner, Nancy Berryhill, denying his
applications for Disability Insurance Benefits and
Supplemental Security Income under the Social Security
The Court has reviewed the parties' briefs and the
administrative record, including the hearing transcript and
medical evidence. For the reasons set forth below, the case
is reversed and remanded.
Background and Procedural History
2012, Plaintiff, then thirty years of age, filed applications
for Disability Insurance Benefits and Supplemental Security
Income alleging he was disabled as of November 20, 2011 as a
result of: back injury and lumbar fusions, Brugada syndrome,
neurofibromatosis, optic glioma, “extra accessory
pathway, ” migraines, and depression. (Tr. 103, 181-86,
189-95). 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.
granted Plaintiff's request for review, and an ALJ
conducted a hearing on February 20, 2014. (Tr. 60-102). At
the hearing, Plaintiff testified that he was divorced and
shared physical custody of his two children, ages eight and
twelve. (Tr. 66, 67). Plaintiff previously worked as a
pharmacy technician, but he stopped working after back
surgery in November 2011 due to “the pain and weight
restrictions.” (Tr. 68, 70). Plaintiff had a
driver's license and was able to drive without
restrictions. (Tr. 67).
regard to his medical impairments, Plaintiff testified that
his most recent back surgery was in March 2012 and he last
saw his orthopedic surgeon, Dr. Parker, in December 2013.
(Tr. 73). According to Plaintiff, Dr. Parker prescribed him
Tramadol and hydrocodone and “sa[id] there's pretty
much nothing he can do so just come back in a year, he'll
re-scan.” (Tr. 73). Plaintiff stated that his back pain
was located in the “lower lumbar region” and
“radiates down my legs.” (Tr. 75). On a typical
day it became so severe that he would need to recline or lie
down twice a day for about forty-five minutes. (Tr. 75-76).
Plaintiff testified that he could either sit or stand for
approximately twenty minutes before his back started hurting
and he would have to change positions. (Tr. 76, 87).
Plaintiff went to the emergency room about three weeks
earlier for back pain and received a shot. (Tr. 77).
testified that he saw a neurologist for treatment of his
headaches once every three months. (Tr. 73). Plaintiff's
neurologists were still “trying to get the right
combination of medicine, to control the headaches, ”
which he suffered about three times per week. (Tr. 74). When
Plaintiff suffered a headache, he would lie down in a dark
room for about two hours to relieve the pain. (Tr. 74-75).
Along with his headaches, Plaintiff usually experienced
nausea and/or vomiting. (Tr. 84). Plaintiff's neurologist
had prescribed amitriptyline and Topamax. (Tr. 73).
the ALJ asked Plaintiff about his heart condition, he
explained: “I just have episodes where it just starts
racing really fast and it makes me feel dizzy, and I feel
like I'm going to pass out.” (Tr. 81). The rapid
heartbeats last “a couple minutes, ” but the
dizziness “could last 15 minutes afterwards. I have
blacked out before from it.” (Tr. 82). Plaintiff did
not believe the medication prescribed by his cardiologist
helped. (Tr. 83). He experienced these episodes about four
times per week. (Tr. 86). Plaintiff testified that he saw his
cardiologist, Dr. Flaker, once every three months and had
undergone two cardiac ablations. (Tr. 74).
testified that his neurofibromatosis was “stable,
” but the vision in his right eye was
“blurry.” (Tr. 77, 78). Plaintiff stated that he
had an inoperable tumor on his right optic nerve, which his
doctors tried to shrink with chemotherapy. (Tr. 87).
was able to dress himself, although it was “painful,
” and he was able to shower and shave. (Tr. 78).
Plaintiff testified that his impairments affected his ability
to exercise and “play with the kids.” (Tr. 79).
Because he was no longer able to “run around
with” his children, they would “play puzzles,
board games” at the kitchen table. (Id.).
Plaintiff was able to prepare microwave meals for his
children, but his eldest son cleaned the house. (Tr. 80-81).
His brother or mother usually did his grocery shopping
because “pushing a car, walking, after a while it just
hurts too much.” (Tr. 80). His mother helped take care
of his children about four days per month when
Plaintiff's “heart racing, migraine, severe back
pain” rendered him incapable of caring for them. (Tr.
vocational expert also testified at the hearing. (Tr.
89-100). The ALJ asked the vocational expert to consider a
hypothetical individual with Plaintiff's age, education,
and work history who was:
Able to lift and carry up to 20 pounds occasionally, 10
pounds frequently, stand and or walk for 30 minutes at a time
for approximately six hours in an eight-hour workday, can sit
for 45 minutes at a time for a total of two hours of an
eight-hour workday with normal breaks, can climb ramps or
stairs occasionally, can never climb ladders, ropes,
scaffolds, can stoop, kneel or crouch occasionally, can never
crawl, with occasional reaching in the front, laterally,
overhead, and low places and by low places I mean below the
knee. The individual would have limited field of vision on
the right side with difficulty reading normal print but
retains sufficient visual acuity to read large print, work
with large objects, able to perform tasks with occasional
reading, has a visual field to avoid ordinary hazards in the
work place. The person must avoid exposure to extreme cold,
avoid concentrated exposure to vibration, avoid exposure to
moisture, must also avoid exposure to hazardous machinery
which is defined as unshielded moving machinery and avoid
exposure to unprotected heights.
(Tr. 92). The vocational expert testified there were no jobs
in the regional or national economy that this hypothetical
individual could perform because she found “it very
difficult to find work that would meet that with the
[occasional] reaching and the posturals…..” (Tr.
the ALJ asked the vocational expert to consider the same
individual “except with frequent reaching in front,
laterally, overhead, low places, ” the vocational
expert testified that such individual could perform the jobs
of garment sorter, folding machine operator, and apparel
stock checker. (Tr. 93-94). Additionally, the vocational
expert opined that if the hypothetical individual were only
“able to lift up to 10 pounds occasionally, ” he
could work as a dowel inspector, patcher, or lens inserter.
(Tr. 98). However, these jobs would be precluded if the
individual were limited to “occasional reaching in
front, laterally, overhead and low places.”
decision dated September 16, 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 November 20, 2011, through the date
of this decision[.]” (Tr. 42). The ALJ found that
Plaintiff had the following severe impairments: “Lumbar
Spine Disorders and status-post [sic] fusion at ¶ 4-L5,
” Brugada syndrome, neurofibromatosis, optic glioma,
migraine headaches, and obesity. (Tr. 32).
reviewing Plaintiff's testimony and medical records and
finding that his “statements concerning the intensity,
persistence, and limiting effects, of [his] symptoms are not
entirely credible, ” the ALJ found that Plaintiff had
the residual functional capacity (RFC) to:
Perform sedentary work, as defined in 20 CFR 404.1567(a) and
416.967(a), but is limited to lifting up to 10 pounds
occasionally, sit for six hours, and stand/walk up to two
hours in an eight-hour workday with normal breaks. The
claimant is limited to no more than frequent reaching in
front, laterally, overhead, and low places (i.e., below the
knees), occasional stooping, kneeling, crouching, and
climbing ramps or stairs, and must never crawl or climb
ladders, ropes, or scaffolds. The claimant has limited field
of vision on the right side with difficulty reading normal
print, but retains sufficient visual acuity to read large
print, work with large objects, perform tasks with occasional
reading, and has the visual fields to avoid ordinary hazards
in the workplace. The claimant must avoid exposure to extreme
cold, moisture, hazardous machinery (i.e., unshielded moving
machinery), as well as unprotected heights, and must avoid
concentrated exposure to vibrations.
(Tr. 34-35). Finally, the ALJ found that Plaintiff was unable
to perform his past relevant work but could perform other
jobs that existed in significant numbers in the national
economy. (Tr. 41).
filed a request for review of the ALJ's decision with the
SSA Appeals Council, which denied review on January 29, 2016
(Tr. 1-5). 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
Standard of Review
must affirm an ALJ's decision if it is supported by
substantial evidence. 42 U.S.C. § 405(g).
“Substantial evidence ‘is less than a
preponderance, but enough so that a reasonable mind might
find it adequate to support the conclusion.'”
Cruze v. Chater, 85 F.3d 1320, 1323 (8th Cir. 1996)
(quoting Boerst v. Shalala, 2 F.3d 249, 250 (8th
Cir. 1993)). In determining whether the evidence is
substantial, a court considers evidence that both supports
and detracts from the Commissioner's decision.
Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir.
2009). However, a court “do[es] not reweigh the
evidence presented to the ALJ and [it] defer[s] to the
ALJ's determinations regarding the credibility of
testimony, as long as those determinations are supported by
good reason and substantial evidence.” Renstrue v.
Astrue, 680 F.3d 1057, 1064 (8th Cir. 2012) (quoting
Gonzales v. Barnhart, 465 F.3d 890, 894 (8th Cir.
after reviewing the record, the court finds it is possible to
draw two inconsistent positions from the evidence and one of
those positions represents the ALJ's findings, the court
must affirm the ALJ's decision.” Partee v.
Astrue, 638 F.3d 860, 863 (8th Cir. 2011) (quoting
Goff v. Barnhart, 421 F.3d 785, 789 (8th Cir.
2005)). The Eighth Circuit has repeatedly held that a court
should “defer heavily to the findings and
conclusions” of the Social ...