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Schmaltz v. Berryhill

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

March 29, 2018

NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.



         This is an action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for judicial review of the final decision of Nancy Berryhill, the Acting Commissioner of Social Security ("the Commissioner"), denying Michael Schmaltz's application for disability insurance benefits ("DIB") under Title II of the Social Security Act ("the Act"), 42 U.S.C. § 401-433, and for supplemental security income ("SSI") under Title XVI of the Act, 42 U.S.C. § 1381-1383b.

         Procedural History

         Michael Schmaltz ("Plaintiff') applied for DIB and SSI in June 2012, alleging that he became disabled in February 2010 because of neuropathy, gout, arthritis, allergies, back pain, and limited use of his hands. (Tr. at 228-40, 279.) After the denial of his applications on initial review, Plaintiff requested a hearing. (Id. at 93-105, 117-23.) The initial denials were affirmed after he failed to appear at the hearing. (Id. at 106-10.)

         Following a remand by the Appeals Council, another hearing was scheduled for October 2013. (Id. at 39-45.) The case was continued at Plaintiffs counsel request. (Id.) After a hearing held in September 2015, Plaintiffs applications were again denied. (Id. at 13-31, 47- 92.) The Appeals Council denied review, thereby adopting the decision of the Administrative Law Judge ("ALJ") as the final decision of the Commissioner.

         Testimony Before the ALJ

         Plaintiff, represented by counsel, and James Israel, a vocational expert ("VE"), testified at the hearing.

         Plaintiff was then fifty-one years old, right-handed, and homeless. (Id. at 50-51.) He had been evicted from a nursing home after he turned them into the police for beating patients. (Id. at 51.) He explained he had difficulty finding a new place because of the six restraining orders his son's mother had against him. (Id. at 52.) He was waiting until after the hearing to make a housing decision. (Id.) Plaintiff did not graduate from high school, but did get his General Equivalency Degree ("GED") ten years later. (Id. at 73.) He went to five years of college on the GI bill, but never graduated. (Id. at 59.) He later testified he went to college on running and music scholarships. (Id. at 72-73.)

         Plaintiff was in the National Guard for eleven years. (Id. at 55.)

         Plaintiff is taking Ventolin for bronchitis, omeprazole for gastroesophageal reflux disease ("GERD"), lisinopril for high blood pressure, aspirin for his heart, Donepezil for dementia, Flexeril for spasms, ibuprofen, and oxycodone. (Id. at 56-57.) He uses an inhaler for his asthma and has trigger point injections and epidurals. (Id.) He is taking a break from the oxycodone, and does so "every so often." (Id. at 57.) The only medication that stops his pain is oxycodone. (Id. at 59.) He does not have any side effects from his current medications. (Id. at 58.)

         Plaintiff has been on Medicaid for four or five years. (Id. at 61.)

         Plaintiff uses a motorized scooter; he received it from Paraquad and has had it "for years." (Id. at 62, 68.) He also uses a cane. (Id. at 77.) Paraquad has been helping him find another place to live. (Id. at 63.)

         Asked if he took any drugs other than those prescribed, Plaintiff replied that he did not. (Id. at 66.) Also, he seldom drank. (Id.) A few years ago, he would drink "a couple of beers, " but he no longer drinks at all. (Id. at 66-67.) He does not belong to any support group because there is no reason to; he does not have a problem with drugs or alcohol. (Id. at 67.)

         The majority of Plaintiffs past work was in restaurants. (Id. at 70.) He has tried to do some construction work. (Id.) He no longer works in restaurants because he drops things and gets angry. (Id. at 79.) He had hoped to re-enlist, but would injure himself every time he came close to doing so. (Id. at 70.) He first enlisted in February 1985. (Id. at 71.) He was in a chemical unit for one year beginning in October 2007. (Id. at 72.) He is trying to qualify for Veteran's Administration ("VA") treatment. (Id.)

         Plaintiff testified that he often drops things and can walk no longer than five minutes. (Id. at 78.) He has had problems with his right hand since 1983. (Id.) He can no longer work because he gets angry. (Id. at 79, 80.) Several times a day his pain is so bad he lies down and doesn't do anything. (Id. at 75.) The frequency depends on how many pain medications he is willing to take. (Id.)

         Plaintiff spends his days at a Bread Company restaurant. (Id. at 78.) He helps out by watching the customers for drug use and stealing. (Id.)

         The VE was asked to assume a hypothetical individual of Plaintiffs age, education, and work experience; who can occasionally lift twenty pounds and frequently lift ten pounds; who can stand or walk about six hours in an eight-hour day and can sit for as long; and who should avoid (a) climbing ladders, ropes, and scaffolds, (b) working around unprotected, dangerous heights and machinery, (c) jobs that expose him to whole body vibration, (d) ambulating on unimproved terrain, and (e) concentrated exposure to noxious fumes, odors, dusts, gases, and extreme cold. (Id. at 84-85.) This person is "limited to simple and/or repetitive work that [doesn't] require close interaction with the public or teamwork type interaction with coworkers." (Id. at 85.) Asked if such a person can perform Plaintiffs past relevant work, the VE explained that he cannot. (Id.) He can, however, perform work as a packer, assembler, or product inspector. (Id. at 85-86.) If the most he can lift is ten pounds and the longest he can stand or walk is two hours, the types of product inspector and assembler are limited, but not precluded. (Id. at 86.) This hypothetical person can also work as a production worker. (Id.)

         If the person will consistently miss more than two days a month or will be late or have to leave work early at least once a week, the person will be unacceptably unreliable. (Id. at 87.) If the person has only occasional use of his hands, there are no jobs he can perform. (Id. at 88.) If the person will engage in an explosive display of insubordination, there are no jobs for him. (Id. at 88-89.)

         Medical Records and Other Before the ALJ

         On a Disability Report, Plaintiff disclosed that he was then 4 feet[1] 8 inches tall and weighed 182 pounds. (Id. at 279.) He worked construction off and on from 1993 to 2012 and worked in restaurants from 1992 to 2010. (Id. at 280, 285.) On a Function Report, he disclosed he does "handy-man work" for three to six hours three days a week. (Id. at 297.) He avoids heavy lifting or working with vibrating tools. (Id.) He has a hard time holding utensils. (Id. at 298.) He tends not to take certain medications because he needs to work or because they place stress on his heart. (Id. at 299.) Twice a month, he cooks, cleans, and, when possible, does yard work. (Id.) When he cooks, he prepares meals for a few days. (Id.) He goes outside every day and, when he does, he walks, rides in a car, uses public transportation, or rides a bicycle. (Id. at 300.) He does not drive. (Id.) He sold his bike to get money and stopped working out or running because of his impairments. (Id. at 301.) He does not follow spoken instructions well, but follows written ones "perfectly." (Id. at 302.) He wears glasses every day and uses a cane to get up from the couch. (Id. at 303.) He does not get along well with authority figures. (Id.)

         Plaintiffs relevant medical records begin in September 2009 with those of an emergency room visit to Barnes Jewish Hospital ("BJH"). (Id. at 449-76.) He was then in police custody and reported having chest pain that began when he was arrested. (Id. at 449.) He explained that he had been told the week before when seen by another provider that he had had a mild heart attack. (Id.) He had been intoxicated until 4 a.m. and requested Vicodin (a combination of acetaminophen and hydrocodone). (Id.) On exam, he was alert and oriented to time, place, and person. (Id.) His affect was normal; his mood and behavior was appropriate. (Id. at 454.) His chest x-rays were unremarkable. (Id. at 459, 470.) He was diagnosed as having an anxiety attack and was discharged. (Id. at 463.)

         Plaintiff was again seen at the BJH emergency room in October. (Id. at 477-505.) Again, he was in police custody. (Id. at 477.) He had injured his right forearm in a fist fight with another inmate. (Id. at 483.) The forearm was x-rayed and placed in a splint; Plaintiff was discharged the next day. (Id. at 497, 501-05.) One week later, Plaintiffs forearm was operated on, including the placement of a plate. (Id. at 506-08.) At a subsequent check-up he was reported to be "doing very well." (Id. at 509-15.) He was to lift no more than five pounds for the next six weeks and return in four weeks. (Id. at 510.)

         Plaintiffs next medical record is from June 4, 2012, [2] when he was seen by Emilio Bianchi, P.A., as a new patient at St. Louis Connect Care ("SLCC") for complaints of a swollen hand and wheezing. (Id. at 837-42.) He was working as a tuck-pointer. (Id. at 837.) After a chest x-ray was taken and showed hyperinflation, he was diagnosed with an upper respiratory infection and encouraged to stop smoking. (Id. at 655, 839, 842.)

         Two days later, Plaintiff was seen at Grace Hill Center ("Grace Hill") for complaints of back pain, allergies, gout, arthritis, and rectal bleeding. (Id. at 410-12.) He was described as being "preoccupied with disability." (Id. at 410.) He was diagnosed with gout, backache, and rheumatoid arthritis and prescribed various mediations. (Id. at 411.) Plaintiff returned the following month to review the results of his blood tests. (Id. at 413-23, 517-20.) He was diagnosed with myopathy, and asthma; his gout and rheumatoid arthritis were described as "resolved." (Id. at 414.)

         In September, Plaintiff returned to Grace Hill for complaints of arthritis, seizures, body aches, and chest and back pain. (Id. at 523-28.) He reported a history "of multiple traumas many of which occurred when he was drunk." (Id. at 523.) He had abused steroids when he was a body builder and now had decreased strength and endurance. (Id.) Spinal x-rays showed degenerative changes but no fracture or subluxation. (Id. at 527-28, 843-44.) He was diagnosed with osteoarthritis. (Id.)

         Six days later, on September 30, Plaintiff was treated at the BJH emergency room after injuring his right thumb sustained when he using a grinder. (Id. at 584-601.) The wound was treated and Plaintiff was discharged with a prescription for oxycodone. (Id. at 593.)

         Plaintiff returned by ambulance on October 11 after burning his left foot when hot grease fell on it. (Id. at 570-83.) He reported he had had one beer and was working on his second; he smelled of alcohol. (Id. at 573.) He was diagnosed with a second degree burn, given a topical treatment, and discharged with prescriptions for tramadol and oxycodone. (Id. at 580.)

         Plaintiff was seen at a BJH clinic on November 30 for evaluation of his musculoskeletal complaints. (Id. at 557-62.) He worked as a manual laborer and was concerned he would lose his job. (Id. at 561.) He reported being in constant pain and having difficulties walking, falling, and getting dressed. (Id. at 563.) A drug screen was negative. (Id. at 566.) Diagnostic tests were to be scheduled to investigate the cause for his pain. (Id. at 562.) A magnetic resonance imaging ("MRI") of his cervical and lumbar spine showed mild to moderate multilevel degenerative disease of the cervical and lumbar spine; bilateral pedicle edema at ¶ 4 and L5 with surrounding bilateral facet enhancement; and a left synovial cyst at ¶ 4-L5. (Id. at 603-08.)

         On January 9, 2013, Plaintiff was seen at the BJH Internal Medicine Clinic for pain control. (Id. at 533.) He explained that he needed a new primary care physician because the previous one did not listen to him about his pain and that he needed his medications. (Id. at 539.) He was referred to a pain clinic. (Id. at 537.)

         Plaintiff was taken on May 3[3] to the BJH emergency room by ambulance with complaints of pain after running out of oxycodone and OxyContin[4] and being unable to get ahold of his physician. (Id. at 1429-46.) He was given a prescription for oxycodone, and discharged home in stable condition. (Id. at ...

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