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 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).
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.
OF 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
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 (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).
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 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).
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
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).
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).
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).
found Plaintiff is unable to perform any past relevant
(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).
appeals, arguing the ALJ failed to consider all of
Plaintiff's limitations when determining Plaintiff's
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 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 ...