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Jernigan v. Berryhill

United States District Court, E.D. Missouri

March 28, 2019

ARTHUR JERNIGAN, 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 Arthur Jernigan (“Plaintiff”) for Disability Insurance Benefits (“DIB”) under Title II, 42 U.S.C. §§ 401, et seq. Plaintiff has filed a brief in support of the Complaint (ECF 20) and Defendant has filed a brief in support of the Answer (ECF 28).

         I. PROCEDURAL HISTORY

         Plaintiff filed his applications for DIB under Title II of the Social Security Act on December 5, 2014 (Tr. 165-171). Plaintiff was initially denied relief on February 5, 2015, and on March 4, 2015, he filed a Request for Hearing before an Administrative Law Judge (“ALJ”) (Tr. 107-113). After a hearing, by a decision dated January 3, 2017, the ALJ found Plaintiff was not disabled (Tr. 46-54). Plaintiff filed a Request for Review of Hearing Decision on February 28, 2017 (Tr. 162-163). On November 9, 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 January 5, 2018 (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 September 30, 2015, and Plaintiff has not engaged in substantial gainful activity since June 20, 2012, the alleged onset date of his disability (Tr. 48).

         The ALJ found Plaintiff has the severe impairments of history of lumbar fusion[1] at ¶ 4-5 and L5-S1, bilateral foraminal narrowing[2] in the lumbar spine, lumbar radiculopathy[3], history of total left knee arthroplasty[4], and obesity (Tr. 48). The ALJ found no impairment or combination of impairments which meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (Tr. 48).

         The ALJ conducted a hearing with Plaintiff, Plaintiff's counsel, and Debra Determan, a vocational expert, on November 10, 2016 (Tr. 68). At the hearing, Plaintiff testified he was born in 1968, completed high school through the tenth grade, and does not have his GED (Tr. 67-68). Plaintiff worked for Stafford Energy, a temp service company, when he was terminated on July 13, 2012, following a work-place accident (Tr. 68-69). Plaintiff has not attempted to find work since his termination stating, he “wasn't able” to (Tr. 69).

         Plaintiff testified he must elevate his legs “up to three to four times in a day, chest high, and then [he] has to ice them two to three times a day” (Tr. 69). Plaintiff had total knee replacement surgery on his right leg, and he testified he is only able to bend his knee 70 degrees instead of the necessary 100 degrees (Tr. 69). Plaintiff has “stabbing, sharp pains at night time” in his lower back, which only allows him to sleep for about two hours at a time (Tr. 70). When Plaintiff sits for approximately thirty minutes, he becomes “so stiff” it is difficult for him to move his knee (Tr. 73). Plaintiff suffers from knee swelling, and his legs give out on him from time-to-time (Tr. 80). Plaintiff must lay flat two to three times a day, about every other day, to relieve pain (Tr. 80-81) Plaintiff testified he is not able to play with his grandchildren because he does not want to twist or turn, and affect the screws in his spine (Tr. 73).

         Plaintiff is 5'8” and weighed 286 pounds in 2012, 350 pounds in 2013, and 305 pounds at the time of the hearing in 2016 (Tr. 74). Plaintiff testified he walks on a treadmill at a very slow pace for about thirty minutes, three to four times a week (Tr. 75). Plaintiff has to hold onto the side rails of the treadmill when he walks for stability (Tr. 75). Additionally, Plaintiff walks with a doctor-prescribed cane when he is outside his home (Tr. 78).

         When asked to describe his back pain, Plaintiff testified when he takes his medication, his back pain is usually at a six or seven on a ten point scale (Tr. 75). When Plaintiff does not take his pain medication, his pain can be as bad as eight and a half, or nine, every day (Tr. 75). Plaintiff testified when he is on his pain medication, the pain in his left knee is about an eight, and the pain stems primarily from his difficulty bending his knee (Tr. 76). Plaintiff also suffers from hip pain following the removal of part of his hip bone which was used in his spinal fusion (Tr. 78-79). Plaintiff testified his pain and stiffness can be so bad, at times, his wife has to help him off the couch (Tr. 79-80).

         Plaintiff does not have a primary care physician, and does not regularly visit the doctor, because he cannot afford the physician costs (Tr. 76). Plaintiff also testified he had an incident with his primary care provider, which led to the termination of the relationship, when he testified positive for “some drugs” (Tr. 77).

         Plaintiff worked as a porter and a detailer cleaning cars at Jerry Ackerman Toyota in 2006 (Tr. 70-71). From 2007 to 2008, Plaintiff worked for Becky's Carpet, loading and unloading carpet padding from a truck (Tr. 71). This position required him to lift anywhere from 20 to 120 pounds at any given time (Tr. 71-72). Plaintiff's position at Becky's Carpet ended when the company went out of business (Tr. 72).

         The vocational expert, Debra Determan, testified Plaintiff had prior work as a material handler, a semiskilled position, which requires very heavy exertion (Tr. 83). Plaintiff also worked as an automobile detailer, and car porter, which are unskilled positions and required medium exertion (Tr. 83-84). Ms. Determan also testified Plaintiff is not able to perform any of his past work; however, he could do sedentary work, including document preparer, call out operator, and telephone quotation clerk (Tr. 84-85).

         After considering the entire record, including Plaintiff's testimony, the ALJ determined Plaintiff has the Residual Functioning Capacity (“RFC”) to perform light work. He could stand and/or walk for about two hours, and sit for up to six hours, in an eight-hour workday with normal breaks (Tr. 49). Plaintiff can never climb ladders, ropes, or scaffolds (Tr. 49). He can occasionally climb ramps and stairs, balance[5], stoop, kneel, crouch, and crawl (Tr. 49). Plaintiff cannot be exposed to excessive vibration, unprotected heights, or hazardous machinery (Tr. 49).

         The ALJ found Plaintiff is unable to perform any past relevant work[6] (Tr. 52). The ALJ also found there are jobs, which exist in significant numbers in the national economy, as noted above. The ALJ concluded Plaintiff was “not disabled” (Tr. 47).

         Plaintiff appeals, arguing first, the ALJ failed to afford adequate weight to Plaintiff's treating physician, Dr. Keith Wilkey, and second, to a report by Delores Gonazalez, a vocational expert. Plaintiff asseverates these errors warrant a change in the ALJ's decision, and his claims were erroneously denied review by the Appeals Counsel.

         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 to determine if the claimant can perform any past relevant work. 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 which can ...


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