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King v. Berryhill

United States District Court, E.D. Missouri

March 12, 2019

ANDREW KING, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security Defendant.

          MEMORANDUM AND ORDER

          E. RICHARD WEBBER SENIOR UNITED STATES DISTRICT JUDGE

         This is an action under Title 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying the application of Andrew King (“Plaintiff”) for Disability Insurance Benefits (“DIB”) under Title II, 42 U.S.C. §§ 401, et seq. and 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 (ECF 15) and Defendant has filed a brief in support of the Answer (ECF 22).

         I. PROCEDURAL HISTORY

         Plaintiff filed his applications for DIB and SSI under Titles II and XVI of the Social Security Act in May 2014 (Tr. 267-275). Plaintiff was initially denied relief on July 11, 2014, and on August 7, 2014, he filed a Request for Hearing before an Administrative Law Judge (“ALJ”) (Tr. 186-190, 193-200). After a hearing, by a decision dated August 2, 2016, the ALJ found Plaintiff was not disabled (Tr. 22-33). Plaintiff filed a Request for Review of Hearing Decision on September 6, 2016 (Tr. 265). On August 14, 2017, the Appeals Council denied Plaintiff's request for review (Tr. 1-6). Plaintiff appealed to the United States District Court for the Eastern District of Missouri on October 3, 2017 (ECF 1). As such, the ALJ's decision stands as the final decision of the Commissioner.

         II. DECISION OF THE ALJ

         The ALJ determined Plaintiff meets the insured status requirements of the Social Security Act through December 31, 2014, and Plaintiff has not engaged in substantial gainful activity since March 1, 2009, the alleged onset date of his disability (Tr. 38).

         The ALJ found Plaintiff has the severe impairments of morbid obesity[1], subacromial and subdeltoid bursitis[2], degenerative disc disease with radiculopathy in the lumbar spine[3], and status/post medial meniscus tear[4] (Tr. 38). The ALJ also found Plaintiff's non-severe impairments[5] include gastroesophageal reflux disease, [6] (“GERD”) and a history of Osgood-Schlatter's disease[7] (Tr. 39). Plaintiff claimed an alleged disability as a result of a memory problem following a car accident, however, the ALJ found memory loss to be a non-medically determinable impairment because there is no associated diagnosis or clinical observation in the record supporting a claim of memory loss (Tr. 39). The ALJ found no impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (Tr. 39).

         The ALJ conducted a hearing with Plaintiff, his counsel, and a vocational expert on March 3, 2016 (Tr. 138-167). At the beginning of the hearing, Plaintiff's attorney indicated the record was not complete and there were additional records from Mercy Hospital, including documentation of a meniscal repair, which needed to be considered (Tr. 141). The ALJ agreed to hold the record open for twenty one days to allow for the submission of additional records (Tr. 142).

         At the hearing, Plaintiff testified he had one year of college education, and no additional formal training or schooling since 1998 (Tr. 144). His past work includes a position at Kapiloani Gardens Apartments as a residential manager which ended in 2009, a position in construction and remodeling with Value Remodeling in, a position with Hunt Building Company remodeling old buildings, driving a supply truck for Pro Service Hawaii Business, repairing and installing ice machines for Pacific Ice Services, plumbing for Complete Mechanical and A-Pack Mechanical, one day working with St. Louis Paving, and installing air conditioners for Kenneth Crowder (Tr. 144-148). In 2009, Plaintiff was fired from Kapiolani Gardens because he could not keep up with the work schedule, or the demands of the job, because his back was giving him a lot of problems (Tr. 148). Plaintiff testified while he had “put in some applications” for employment, he had not held a job since 2009 (Tr. 149).

         Plaintiff lives with his parents in their home, has a driver's license, and drives approximately two times a week (Tr. 149-150). Plaintiff has doctor's appointments “at least once every three weeks” (Tr. 150). Plaintiff has been through physical therapy at least three times for his shoulder and knees, and has received shots in both of his knees, his shoulder, and his back (Tr. 151-153). At the time of the hearing, Plaintiff weighed 440 pounds, down from 480 pounds approximately a year and half before (Tr. 153). Plaintiff's old hobbies were primarily activity related including sports, hunting, and fishing, but now Plaintiff spends his days around the house playing an occasional game, watching sports, and helping with chores (Tr. 154-155). Plaintiff's right knee hinders him the most and he is able to walk for approximately five minutes and a distance of 100 feet before he has to stop and rest (Tr. 157-158). Plaintiff testified he is only able to lift items which are less than twenty pounds, and he is unable lift anything past chest-height without pain (Tr. 158-159). Plaintiff testified he is able to use a computer and keyboard without any pain (Tr. 159). Plaintiff has to elevate his leg at least twice a day for 15 to 20 minutes while laying down (Tr. 160). Plaintiff also lays down at least four times a day for an hour, or so, to straighten out his back while he watches a show, and uses ice at least twice a day (Tr. 160).

         The vocational expert, Terri Crawford, testified Plaintiff is not able to perform any of his past work; however, he is able to work as an order food clerk and a charge account clerk, both of which are sedentary, unskilled positions (Tr. 163-166).

         After considering the entire record, including Plaintiff's testimony, the ALJ determined Plaintiff has the Residual Functioning Capacity (“RFC”) to perform sedentary work (Tr. 46). The ALJ found Plaintiff is unable to perform any past relevant work[8] (Tr. 45). The ALJ also found there are jobs which exist in significant numbers in the national economy Plaintiff can perform, including an order clerk for food and beverage services, and a charge account clerk (Tr. 47). Thus, the ALJ's conclusion for Plaintiff was “not disabled” (Tr. 47).

         Plaintiff appeals, arguing first, the decision of the ALJ failed to articulate a legally sufficient rational for his conclusions regarding Plaintiff's RFC, and second, the ALJ's questioning of the vocational expert was improper and therefore the vocational expert's answer is not substantial evidence supporting the ALJ's determination.

         III. LEGAL STANDARD

         Under the Social Security Act, the Commissioner must follow 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, first the claimant 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 RFC and the physical and mental demands of the work the claimant has done in the past. 20 C.F.R. § 404.1520(f).

         Fifth, the severe impairment must prevent the claimant from doing any other work. 20 C.F.R. §§ 416.920(g), 404.1520(g). At this fifth step of the sequential analysis, the Commissioner has the burden of production to show evidence of other jobs in the national economy that can be performed by a person with the claimant's RFC. Steed, 524 F.3d at 874 n.3.

         “The ultimate burden of persuasion to prove disability, however, remains with the claimant.” Young v. Apfel, 221 F.3d 1065, 1069 n.5 (8th Cir. 2000). See also Harris v. Barnhart, 356 F.3d 926, 931 n.2 (8th Cir. 2004) (citing 68 Fed. Reg. 51153, 51155 (Aug. 26, 2003)); Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004) (“The burden of persuasion to prove disability and to demonstrate RFC remains on the claimant, even when the burden of production shifts to the Commissioner at step five.”). Even if a court finds there is a preponderance of the evidence against the ALJ's decision, the decision must be affirmed if it is supported by substantial evidence. Clark v. Heckler, 733 F.2d 65, 68 (8th Cir. 1984). “Substantial evidence is less than a preponderance but is enough that a reasonable mind would find it adequate to support the Commissioner's conclusion.” Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002). See also Cox v. Astrue, 495 F.3d 614, 617 (8th Cir. 2007).

         It is not the job of the district court to re-weigh the evidence, or review the factual record de novo. Cox, 495 F.3d at 617. Instead, the district court must simply determine whether the quantity and quality of evidence is enough, so a reasonable mind might find it adequate to support the ALJ's conclusion. Davis v. Apfel, 239 F.3d 962, 966 (8th Cir. 2001) (citing McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000)). Weighing the evidence is a function of the ALJ, who is the fact-finder. Masterson v. Barnhart, 363 F.3d 731, 736 (8th Cir. 2004). Thus, an administrative decision which is supported by substantial evidence is not subject to reversal merely because substantial evidence may also support an opposite conclusion or because the reviewing court would have decided differently. Krogmeier, 294 F.3d at 1022.

         To determine whether the Commissioner's final decision is supported by substantial evidence, the court is required to review the administrative record as a whole and to consider:

(1) Findings of credibility made by the ALJ;
(2) The education, background, work history, and age of the ...

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