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 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).
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
DECISION OF 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
found Plaintiff has the severe impairments of history of
lumbar fusion at ¶ 4-5 and L5-S1, bilateral
foraminal narrowing in the lumbar spine, lumbar
radiculopathy, history of total left knee
arthroplasty, 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.
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.
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).
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).
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).
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).
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).
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).
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, stoop, kneel, crouch, and crawl (Tr. 49).
Plaintiff cannot be exposed to excessive vibration,
unprotected heights, or hazardous machinery (Tr. 49).
found Plaintiff is unable to perform any past relevant
(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”
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.
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 to
determine if the claimant can perform any past relevant work.
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 which can ...