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Larry B. v. Saul

United States District Court, E.D. Missouri, Eastern Division

September 24, 2019

LARRY B., Plaintiff,
v.
ANDREW M. SAUL, [1]Commissioner of Social Security Administration, Defendant.

          MEMORANDUM AND ORDER

          JOHN M. BODENHAUSEN, UNITED STATES MAGISTRATE JUDGE

         This action is before the Court pursuant to the Social Security Act, 42 U.S.C. §§ 401, et seq. (“the Act”). The Act authorizes judicial review of the final decision of the Social Security Administration ("Administration") denying Plaintiff’s application for Disability Insurance Benefits ("DIB"). All matters are pending before the undersigned United States Magistrate Judge with consent of the parties, pursuant to 28 U.S.C. § 636(c). The matter is fully briefed, and for the reasons discussed below, the matter will be remanded for additional proceedings.

         Procedural History

         On November 23, 2015, Plaintiff filed an application for DIB under the Act. Plaintiff alleged a disability onset date of November 4, 2014. Plaintiff’s application was denied initially on February 18, 2016, and he thereafter requested a hearing before an Administrative Law Judge (“ALJ”), which was held on November 7, 2017.

         The administrative hearing was conducted using video conferencing. Plaintiff appeared with counsel. Plaintiff testified in response to questions posed by the ALJ as well as his attorney. Dr. Thomas Bott, [2] a Vocational Expert (“VE”) testified regarding Plaintiff’s past work and in response to hypothetical questions posed by the ALJ. In a written decision dated February 14, 2018, the ALJ denied Plaintiff’s application for benefits. In a notice dated Marcy 27, 2018, the Appeals Counsel for the Administration denied Plaintiff’s request for review. Therefore, the ALJ’s decision stands as the final decision of the Administration in this matter. Accordingly, Plaintiff has exhausted his administrative remedies and the matter is properly before this Court.

         Administrative Record

         I. General

         Broadly speaking, in November 2014, Plaintiff experienced what the record consistently refers to as a transient ischemic attack ("TIA"), and Plaintiff alleges that he has been disabled since that time. Prior to his alleged disability, Plaintiff worked as a truck driver and before that as a paramedic and an EMT. Plaintiff was 45 years old on his date last insured, which was December 31, 2017.

         In a Disability Report – Adult (Tr. 230-38), Plaintiff’s medical conditions are listed as: weakness on the left side of his body; headache; high blood pressure; dizziness; and blurred vision. (Tr. 231) The index of the administrative transcript, prepared and submitted by the Administration in this matter (ECF No. 11-2), indicates that this Disability Report was dated November 30, 2015. In a Function Report – Adult (Tr. 262-69), dated December 16, 2015, Plaintiff listed various information about his conditions and his living situation, and provided information relative to his ability to carry out various activities associated with daily living. Broadly speaking, most of the limitations Plaintiff listed related to physical issues, such as limitations relating to lifting, squatting, bending, standing, reaching, walking, sitting, kneeling, stair climbing, seeing, and using his hands.

         II. Summary – Pertinent Medical Records and Opinion Evidence

         The Court has fully considered the entire record, but summarizes and discusses only specific aspects herein to provide context for this memorandum and order. Because the Court believes that this matter must be remanded so that the Administration may fully weigh and consider all relevant opinion evidence, a full summary of the record is not necessary.[3]

         Dr. Julia Zevallos, M.D., a neurologist, began a treatment relationship with Plaintiff in December 2014. (Tr. 347-425, 490-94) At or near the outset of her treatment, Dr. Zevallos prepared a “To Whom It May Concern” letter, dated December 5, 2015. (Tr. 347) In that letter, Dr. Zevallos represented that she had been treating Plaintiff for “severe back and neck pain, with neurological deficits, including numbness and tingling.” Dr. Zevallos opined that Plaintiff was not able to return to work due to his pain, noting that she ordered tests to assist in diagnosing the source of his problems.

         Dr. Zevallos continued to treat Plaintiff over the following months and she completed a “Physical Capabilities Evaluation” form, dated April 7, 2015. (Tr. 376-79) On the first page of the form, Dr. Zevallos reported that Plaintiff could not return to work at the time and indicated an approximate return to work date of June 1, 2015, but also noted that it was “unknown” whether his return would be full or part time. The form also included a series of checklists that reflected Dr. Zevallos’s assessment of Plaintiff’s abilities to carry out basic work-related tasks.

         Plaintiff also received treatment for his various physical conditions at Quality Health Care of Desloge, MO, from Dr. Stephen Forsythe and Kimberly Yeager, a Nurse Practitioner. (Tr. 522-33, 558-77) Many of the treatment notes are signed by Nurse Practitioner Yeager. On March 24, 2015, Nurse Practitioner Yeager completed a Guardian Group Disability Claims form entitled “Physical Capabilities Evaluation.”[4] (Tr. 333-34) It was a checklist form that assessed Plaintiff’s ability to perform various specific work-related tasks, based on frequency during a workday (i.e., never, occasionally, frequently, and continuously). The form also included an assessment of other work-related environmental considerations such as, for example, the ability to work at heights or be exposed to vibration or dust. The restrictions noted on the form by Nurse Practitioner Yeager were extensive. For example, she limited Plaintiff to sitting, standing, and walking to one hour during a workday. Nurse Practitioner Yeager did not provide any significant explanations for the restrictions, and she noted that the restrictions would last for an “unknown” duration. (Tr. 334)

         III. Administrative Hearing (Tr. 27-59)

         The ALJ held an administrative hearing on November 7, 2017. Plaintiff appeared with his attorney. The VE also testified. Plaintiff answered questions in response to the ALJ and his attorney.

         Plaintiff testified regarding his education and past work, which included driving a truck, both locally and nationally. Plaintiff also worked as a paramedic and an EMT. At times, his past work required him to lift heavy objects, including people and boxes.

         Plaintiff testified regarding his treatment with Dr. Zevallos and Nurse Practitioner Yeager and reviewed his medications. Plaintiff testified regarding his activities and represented that he seldom left his home. He indicated that he experienced knee and back pain, as well as balance issues and that he was often “out of wind.” (Tr. 37) Plaintiff also stated that he seldom drives a car due to the stress of the situation, his general weakness, and lack of stamina. Plaintiff explained that physical exertion “skyrockets” his blood pressure. (Tr. 41) According to Plaintiff, when his blood pressure rises, his vision deteriorates (he sees spots) and he loses function in one side. (Tr. 42-43) Plaintiff testified that he had difficulty sitting for extended periods and that, as he was sitting for the hearing, his lower back hurt bad. Plaintiff explained that he went from bed, to a recliner, and back to bed when he was no longer comfortable in the recliner. He described his weakness as “a profound generalized weakness” and that he experiences a headache 100% of the time, “[t]hey never go away.” (Tr. 45, 46) Plaintiff testified that he has memory issues and is easily distracted. Near the end of the hearing, Plaintiff testified that Nurse Practitioner Yeager said she was not going to release him to work.

         The VE testified regarding Plaintiff’s past work and in response to hypothetical questions posed by the ALJ. The VE testified that a hypothetical person, limited to light work (with other limitations) would not be able to return to Plaintiff’s past work. The VE further testified, however, that such an individual could still perform other work available in the national economic, including companion, nursery school attendant, and gate guard. (Tr. 52-53) The VE also testified that a hypothetical person limited to sedentary work and the previously identified limitations would be able to work as a sorter, information clerk, or food checker. The VE was also asked about various additional considerations, such as whether any of the jobs he listed ...


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