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McGee v. Berryhill

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

September 25, 2017

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

          MEMORANDUM AND ORDER

          PATRICIA L. COHEN UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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 Act.[2] 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.

         I. Background and Procedural History

         In June 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.[3] (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. 127-31, 134-35).

         The SSA 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).

         In 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).

         Plaintiff testified that he saw a neurologist for treatment of his headaches once every three months.[4] (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).

         When 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).

         Plaintiff 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).

         Plaintiff 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. 84).

         A 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. 93).

         When 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.” (Id.).

         In a decision dated September 16, 2014, the ALJ applied the five-step evaluation process set forth in 20 C.F.R. §§ 404.1520, 416.920[5] 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).

         After 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).

         Plaintiff 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 (2000).

         II. Standard of Review

         A court 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. 2006)).

         “If, 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 ...


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