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Dew v. Berryhill

United States District Court, E.D. Missouri

April 18, 2019

JOHN ROSS DEW, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security Defendant.



         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 John Ross Dew (“Plaintiff”) for Disability Insurance Benefits (“DIB”) under Title II, 42 U.S.C. §§ 401, et seq. Plaintiff filed a brief in support of the Complaint (ECF 19), Defendant filed a brief in support of the Answer (ECF 26), and Plaintiff filed a brief in reply (ECF27).


         Plaintiff filed his application for DIB under Title II of the Social Security Act on August 26, 2014 (Tr. 170-171). Plaintiff was initially denied relief on November 20, 2014, and on December 17, 2014, he filed a Request for Hearing before an Administrative Law Judge (“ALJ”) (Tr. 116-117). After a hearing, by a decision dated October 11, 2016, the ALJ found Plaintiff was not disabled (Tr. 46-54). Plaintiff filed a Request for Review of Hearing Decision on December 5, 2016 (Tr. 162). On November 15, 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 1, 2018 (ECF 1). As such, the ALJ's decision stands as the final decision of the Commissioner.


         The ALJ determined Plaintiff meets the insured status requirements of the Social Security Act through December 31, 2017, and Plaintiff has not engaged in substantial gainful activity since May 4, 2012, the alleged onset date of his disability (Tr. 24).

         The ALJ determined Plaintiff has the severe impairments of degenerative disc disease, obesity, pelvic fractures, left femur fracture, left foot and ankle osteoporosis, and mild pes planus[1] (Tr. 24). The ALJ also found Plaintiff has the medically determinable impairment of borderline intellectual functioning, but the impairment does not cause more than a minimal limitation on Plaintiff's ability to perform mental work activities, and is therefore non-severe (Tr. 24). 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. 25).

         The ALJ conducted a hearing with Plaintiff, Plaintiff's counsel, and Elizabeth Wheeler, a vocational expert, on August 22, 2016 (Tr. 36). At the hearing, Plaintiff testified he was born in 1981, and was 34 years old on the date of his hearing (Tr. 44). Plaintiff is 5'10” tall, and weighs 300 pounds (Tr. 44-45). He testified he has gained weight since his accident[2] on May 4, 2012, because he is no longer as active as he was before the fall (Tr. 45). Plaintiff lives with his mother, and is able to drive short distances of less than 15 miles approximately once or twice a day (Tr. 45). During high school, Plaintiff was in the special education program which afforded him extra time to take his tests (Tr. 52-53). Plaintiff obtained a high school diploma (Tr. 52-53).

         Plaintiff testified the primary limiting factor on his ability to work is pain located in his lower and middle back, pelvis, left knee, and both feet (Tr. 46-47). Plaintiff suffers from sharp and stabbing knee pain, throbbing back pain, and a burning sensation in his feet (Tr. 47). He is not taking any prescribed medications for the pain, only Aleve, which he is able to get over-the-counter (Tr. 47). He describes his lower back pain as anywhere between a four and a six on a ten-point scale, on any given day (Tr. 55). Plaintiff wears a brace which controls the lower part of his leg below his left knee (Tr. 56). Problems with his left leg cause him to slip and fall easily (Tr. 56). Plaintiff also testified he must sit down when he takes a shower because he has a difficult time maintaining balance when he closes his eyes (Tr. 63). Plaintiff's ability to turn, grip, or hold onto things with his non-dominant hand is also limited as a result of a 2014 fall (Tr. 57). Plaintiff last visited a doctor in 2014 (Tr. 47-48). He has not visited a doctor since, because he no longer has medical insurance, and does not have any money (Tr. 47-48).

         Plaintiff testified his typical day consists of staying at home, with a once-weekly trip to go fishing (Tr. 50). Plaintiff is able to do some household chores including a small amount of cooking, laundry, taking out the trash, and infrequently vacuuming or sweeping (Tr. 51-52). Plaintiff's past employment includes work for General Overman as a laborer installing equipment and climbing cell towers, delivering mail for the United States Postal Service, laboring for Magna Siding of America, in construction for Cleveland Gutter Works and Aiden Taylor Enterprises, and stocking and selling for Johnny Mac's (Tr. 66-70). Plaintiff also worked in at least two factories assembling fuel tanks and pumps which go inside of refrigerators (Tr. 71).

         The vocational expert, Elizabeth Wheeler, testified Plaintiff's prior work was classified under the Dictionary of Occupational Titles (“DOT”) as a production assembler, stock clerk, mail carrier, cable installer, and constructor I (Tr. 74-75). Ms. Wheeler testified Plaintiff is not able to perform any of his past work; however, he could do sedentary work, including in positions as an office clerk, information clerk, and call out operator (Tr. 76).

         After considering the entire record, including Plaintiff's testimony, the ALJ determined Plaintiff has the Residual Functioning Capacity (“RFC”) to perform sedentary work (Tr. 26). He can: lift up to 15 pounds occasionally; stand/walk for two hours and sit for up to 6 hours in an 8hour workday, with normal break; occasionally push or pull on the left upper extremity; occasionally climb ramps or stairs; never climb ladders, ropes, or scaffolds; never balance and crawl, occasionally stoop, knell, and crouch; avoid concentrated exposure to extreme cold, and excessive vibration; avoid unprotected heights; and avoid concentrated exposure to hazardous machinery (Tr. 26).

         The ALJ found Plaintiff is unable to perform any past relevant work[3] (Tr. 30). The ALJ also found there are jobs, which exist in significant numbers in the national economy, which Plaintiff can perform. Thus, the ALJ concluded Plaintiff was “not disabled” (Tr. 26-31).

         Plaintiff appeals, arguing the ALJ failed to consider all of Plaintiff's limitations when determining Plaintiff's RFC.


         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 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). ‚ÄúSubstantial evidence is less than a preponderance but is enough that a ...

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