United States District Court, E.D. Missouri
MEMORANDUM AND ORDER
RICHARD WEBBER SENIOR UNITED STATES DISTRICT JUDGE
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).
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.
DECISION OF 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
found Plaintiff has the severe impairments of morbid
obesity, subacromial and subdeltoid
bursitis, degenerative disc disease with
radiculopathy in the lumbar spine, and status/post medial
meniscus tear (Tr. 38). The ALJ also found
Plaintiff's non-severe impairments include
gastroesophageal reflux disease,  (“GERD”) and a
history of Osgood-Schlatter's disease (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).
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).
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).
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).
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).
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 (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).
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.
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.
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.
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).
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.
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).
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.
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