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Foy v. Saul

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

November 21, 2019

RICHARD FOY, Plaintiff,
v.
ANDREW M. SAUL,[1] Commissioner of Social Security Defendant.

          MEMORANDUM AND ORDER

          PATRICIA L. COHEN UNITED STATES MAGISTRATE JUDGE

         Plaintiff Richard Foy seeks review of the decision by Defendant Social Security Commissioner Andrew Saul denying his application for Supplemental Security Income (SSI) under the Social Security Act. For the reasons set forth below, the case is reversed and remanded.

         I. Background and Procedural History

         In March 2014, Plaintiff, then forty-five years old, filed an application for SSI alleging that he became disabled on September 13, 2010 as a result of “depression, lower back pain, right ankle weakness, [and] nerve damage and numbness throughout extremities.”[2] (Tr. 132-37, 374) The Social Security Administration (SSA) denied Plaintiff's claims, and he filed a timely request for a hearing before an administrative law judge (ALJ).[3] (Tr. 380-92, 412-14)

         In April 2017, the ALJ conducted a hearing at which Plaintiff and a vocational expert testified.[4] (Tr. 306-47) In a decision dated May 10, 2017, the ALJ found that Plaintiff had “not been under a disability, as defined in the Social Security Act, from October 24, 2015, through the date of this decision.” (Tr. 15-32) Plaintiff filed a request for review of the ALJ's decision with the SSA Appeals Council, which denied review. (Tr. 1-6) Plaintiff has exhausted all administrative remedies, and the ALJ's decision stands as the SSA's final decision. Sims v. Apfel, 530 U.S. 103, 106-07 (2000).

         II. Evidence Before the ALJ

         Plaintiff testified that he weighed 450 pounds[5] and had been living at a long-term care facility, called Rancho Manor, for a year and a half. (Tr. 330-31) Plaintiff stated that he most recently worked as a janitor at a church in April or March 2015.[6] (Tr. 313) He explained that he worked for “about a month before the pain of the osteomyelitis started kicking in.” (Id.)

         Plaintiff testified that, in 2014, he received a college degree in graphic communications with the “intention…to go into the work field and be a graphic designer.” (Tr. 314) He explained that he was unable to work as a graphic designer because, “due to the osteomyelitis, …I can't hold the phone very long, or a pencil, or any kind of material very long with this arm before my arm goes numb.” (Tr. 314-15) Plaintiff stated that he had “always had an issue with my right arm, ” but the osteomyelitis “damaged the nerve in my spine, and it caused that to get numb a lot faster.” (Id.)

         Plaintiff's primary problems were “pain in my back, and tingling in my arms and legs, ” as well as “a lot of pain in my hips.” (Tr. 318) The ALJ observed that Plaintiff was wearing a brace on his left forearm, and Plaintiff explained “I have tennis elbow….I can't pull anything, or hold anything with this arm.” (Tr. 323)

         Plaintiff used a manual wheelchair “early in the mornings because wa[l]king is impossible because of the pain.” (Tr. 315, 319) After about an hour and a half, Plaintiff was able to walk with the use of a cane, which he had been using for the past seven or eight months. (Tr. 316) Plaintiff estimated that he was able to walk half a block, stand “maybe five minutes, ” and sit “[p]robably ten or 15 minutes.” (Tr. 317) Plaintiff had “to lay down at periods during the day because my back hurts really bad.” (Tr. 315) He estimated that, over the course of a day, he would usually lie down “[p]robably about an hour.” (Tr. 318) On his worst days, which occurred “about once every two to three weeks, ” he would lie down “[m]ost of the day.” (Tr. 318-19) Plaintiff was able to lift and carry a gallon of milk. (Tr. 318)

         Plaintiff took Neurontin “for the nerve damage” and “Percocet for pain.” (Tr. 320-21) He testified that the Neurontin “makes me really sleepy.” (Tr. 320) Plaintiff had been taking Percocet since October 2015. (Tr. 321) Plaintiff did not like taking narcotics and he “felt better…mentally” when his doctors decreased his dosage “because in my past I used to be on drugs and alcohol, so I really try to avoid that.” (Tr. 321) Plaintiff rated his current pain as “[a] four, four and a half.” (Tr. 335)

         In regard to his mental impairments, Plaintiff testified that his depression had “gotten a lot better” but “I still have issues with it.” (Tr. 325) He believed “the medication has really helped me a lot[.]” (Tr. 326)

         Plaintiff stated that the staff at Rancho Manor cooked, cleaned, made his bed, washed his clothes, and filled his ice pitcher. (Tr. 323) He testified that if he were to live in an apartment, he would “probably need some assistance like with…chores, cleaning, like doing laundry…stuff life that, ” but, if he had a washer and dryer, he “probably could” do his laundry. (Tr. 331) Plaintiff also believed he would be able to shower and “keep [him]self clean and healthy.” (Tr. 332) Plaintiff was unable to tie his shoelaces and required help putting on his shoes and socks. (Tr. 323) Plaintiff testified that he loved to read and had no difficulty remembering what he read. (Tr. 328) He usually read for “a couple hours” at a time. (Tr. 329)

         A vocational expert also testified at the hearing. (Tr. 339-47) The ALJ asked the vocational expert to consider a hypothetical individual able to perform sedentary work who: “is able to stoop, kneel, crouch, and crawl occasionally; is able to perform work that does not require the operation of foot controls, or climbing ladders; is able to perform work that is simple, and will respond appropriately to at least routine changes in a work environment.” (Tr. 339) The vocational expert responded that the hypothetical individual would not be able to perform Plaintiff's past relevant work, but could perform the jobs of document preparer, addresser, and charge account clerk. (Tr. 340) When Plaintiff's counsel added that the hypothetical individual “was limited to less than frequent use of the right-dominant upper extremity for grasping, handling, and fingering, ” the vocational expert stated that such an individual “would be precluded from the job examples I gave.” (Tr. 344)

         With respect to Plaintiff's medical treatment records, the Court adopts the facts provided by Plaintiff in his statement of material facts and admitted by the Commissioner. (ECF Nos. 24, 29-1) The Court will address specific facts related to the issues raised by Plaintiff as needed in the discussion below.

         III. Standard for Determining Disability Under the Act

         To be eligible for benefits under the Social Security Act, a claimant must prove he or she is disabled. 42 U.S.C. § 423 (a)(1); Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001). The Act defines disability as “the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); See also 20 C.F.R. § 416.905(a). The impairment must be “of such severity that [the claimant] is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy ....” 42 U.S.C. § 1382c(a)(3)(B).

         To determine whether a claimant is disabled, the Commissioner engages in a five-step evaluation process. See 20 C.F.R. § 416.920; see also McCoy v. Astrue, 648 F.3d 605, 511 (8th Cir. 2011). Those steps require a claimant to show that he or she: (1) is not engaged in substantial gainful activity; (2) has a severe impairment or combination of impairments which significantly limits his or her physical or mental ability to do basic work activities or (3) has an impairment which meets or exceeds one of the impairments listed in 20 C.F.R., Subpart P, Appendix 1; (4) is unable to return to his or her past relevant work; and (5) the impairments prevent him or her from doing any other work. Id.

         Prior to step four, the Commissioner must assess the claimant's residual functional capacity (RFC), which is “the most a claimant can do despite [his or her] limitations.” Moore v. Astrue, 572 F.3d 520, 523 (8th Cir. 2009) (citing 20 C.F.R. 404.1545(a)(1)); see also 20 C.F.R. §§ 416.920(e), 416.945(a)(1). Through step four, the burden remains with the claimant to prove that he or she is disabled. Moore, 572 F.3d at 523. At step five, the burden shifts to the Commissioner to establish that, given the claimant's RFC, age, education, and work experience, ...


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