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Webb v. Berryhill

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

October 20, 2017

NANCY A. BERRYHILL[1], Acting Commissioner of Social Security Administration, Defendant.



         This matter is before the Court on Plaintiff's request for judicial review under 42 U.S.C. § 405(g) of the final decision of Defendant denying Plaintiff's application for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act (Act), 42 U.S.C. §§ 401-434, 1381-1385 . For the reasons set forth below, the Court will affirm the Commissioner's denial of Plaintiff's applications.

         Facts and Background

         On July 6, 2011, following a hearing, an ALJ delivered a decision finding Plaintiff was not under a disability as defined in the Act. On August 8, 2012, The Social Security Administrationqww Appeals Council granted Plaintiff's request for review and remanded the case back to an ALJ for further evaluation of Plaintiff's residual functional capacity (RFC) and a new decision. On November 6, 2013 a hearing was conducted in Columbia and Hannibal, Missouri via video. Plaintiff appeared by video teleconference from Hannibal, Missouri, The ALJ was by video from Columbia, Missouri. The Vocational Expert, John McGowan, appeared as well from Columbia, Missouri.

         Plaintiff was born on September 26,, 1962. He was 45 years old at the time of the alleged onset disability. Plaintiff did not complete high school but has his GED.

         Plaintiff claimed disability due to scoliosis, hyperthyroidism, right knee pain, infected teeth, major depression, and hearing loss. He testified that sometimes he is unable to focus and concentrate; sometimes, has difficulty in maintaining good hygiene; doesn't like being around people sometimes because it seems they talk about irrelevant things;

         At the hearing Plaintiff testified that he has depression but has not actually been treated. Plaintiff references certain internet sites to find ways to deal with his depression. Plaintiff noted that sometimes he feels overwhelmed and has flashbacks relating to a vehicular accident he was involved in some considerable time prior to the hearing. In relation to treatment for the depression he stated he had not seen anyone after 2009 until he saw a doctor shortly prior to the hearing. He also testified that he can stand for no longer than 15 minutes or so because longer than that causes him to experience great pain.

         Plaintiff testified that he previously worked in customer service mostly answering phones and talking to people on the phone regarding complaints they had. He also worked as a commercial driver transporting freight from 1992 to 2007.

         There was testimony from Dr. John McGowan, the Vocational Expert. Dr. McGowan testified and classified the past work experience of the Plaintiff in relation to the Dictionary of Occupational Titles and in consideration of hypotheticals put to him by the ALJ. . Based upon all of those considerations and the stated hypotheticals of the ALJ, including stated limitations, the Vocational Expert concluded there were jobs at the medium work level available for the Plaintiff such as a warehouse worker, laborer, packer of agricultural produce, and industrial cleaner. The second hypothetical posed found Plaintiff to be at the light level. The Vocational Expert found there to be jobs available for electric sealing machine operator, packing and filling machine operations. The third hypothetical put by the ALJ assumed all the factors of the first two and included assuming there were problems getting out of the house due to depression, regularly missing work at least once per month.

         The ALJ determined that Plaintiff was not entitled to a finding of disabled. The Appeals Council denied Plaintiff's request for review on March 24, 2015. The decision of the ALJ is now the final decision for review by this court.

         Statement of Issues

         The issues in a Social Security case are whether the final decision of the Commissioner is consistent with the Social Security Act, regulations, and applicable case law, and whether the findings of fact by the ALJ are supported by substantial evidence on the record as a whole. Here the Plaintiff asserts the specific issues in this case are whether (1) the ALJ properly evaluated the severity of Plaintiff's impairments, (2) whether the ALJ properly evaluated Plaintiff's mental impairment at step three of the sequential evaluation process, and (3) whether the ALJ properly relied on the testimony of the vocational expert at step five.

         Standard for Determining Disability

         The Social Security Act defines as disabled a person who is “unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A); see also Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir.2010). The impairment must be “of such severity that [the claimant] is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.” 42 U.S.C. § 1382c(a)(3)(B).

         A five-step regulatory framework is used to determine whether an individual claimant qualifies for disability benefits. 20 C.F.R. §§ 404.1520(a), 416.920(a); see also McCoy v. Astrue, 648 F.3d 605, 611 (8th Cir.2011) (discussing the five-step process). At Step One, the ALJ determines whether the claimant is currently engaging in “substantial gainful activity”; if so, then he is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(I), 416.920(a)(4)(I); McCoy, 648 F.3d at 611. At Step Two, the ALJ determines whether the claimant has a severe impairment, which is “any impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities”; if the claimant does not have a severe impairment, he is not disabled. 20 C.F.R. §§ 404.1520(a) (4)(ii), 404.1520(c), 416.920(a)(4)(ii), 416.920(c); McCoy, 648 F.3d at 611. At Step Three, the ALJ evaluates whether the claimant's impairment meets or equals one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the “listings”). 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the claimant has such an impairment, the Commissioner will find the claimant disabled; if not, the ALJ proceeds with the rest of the five-step process. 20 C.F.R. §§ 404.1520(d), 416.920(d); McCoy, 648 F.3d at 611.

         Prior to Step Four, the ALJ must assess the claimant's “residual functional capacity” (“RFC”), which is “the most a claimant can do despite [his] limitations.” Moore v. Astrue, 572 F.3d 520, 523 (8th Cir.2009) (citing 20 C.F.R. § 404.1545 (a) (1)); see also 20 C.F.R. §§ 404.1520(e), 416.920(e). At Step Four, the ALJ determines whether the claimant can return to his past relevant work, by comparing the claimant's RFC with the physical and mental demands of the claimant's past relevant work. 20 C.F.R. §§ 404.1520(a) (4) (iv), 404.1520(f), 416.920(a) (4) (iv), 416.920(f); McCoy, 648 F.3d at 611. If the claimant can perform his past relevant work, he is not disabled; if the claimant cannot, the analysis proceeds to the next step. Id... At Step Five, the ALJ considers the claimant's RFC, age, education, and work experience to determine whether the claimant can make an adjustment to other work in the national economy; if the claimant cannot make an adjustment to other work, the claimant will be found disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); McCoy, 648 F.3d at 611.

         Through Step Four, the burden remains with the claimant to prove that he is disabled. Moore, 572 F.3d at 523. At Step Five, the burden shifts to the Commissioner to establish that the claimant maintains the RFC to perform a significant number of jobs within ...

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