Anderson v. Callahan

Decision Date09 October 1997
Docket NumberNo. 4:96-CV-2151 CAS.,4:96-CV-2151 CAS.
Citation981 F.Supp. 1258
PartiesJoseph ANDERSON, Plaintiff, v. John J. CALLAHAN, Ph.D., Acting Commissioner of Social Security,<SMALL><SUP>1</SUP></SMALL> Defendant.
CourtU.S. District Court — Eastern District of Missouri

Dennis W. Fox, St. Louis, MO, for plaintiff.

Maria C. Sanchez, Office of U.S. Atty., St. Louis, MO, for defendant.

ORDER

SHAW, District Judge.

This matter is before the Court pursuant to the Report and Recommendation of United States Magistrate Judge Thomas C. Mummert, III, filed September 26, 1997. See 28 U.S.C. § 636(b). Magistrate Judge Mummert recommends that the Court deny Plaintiff's Motion for Summary Judgment and grant Defendant's Motion for Summary Judgment. Neither party has filed an objection to the recommendation.

After careful review of the matter, the Court concurs with the recommendation of the Magistrate Judge.1

Accordingly,

IT IS HEREBY ORDERED that the Report and Recommendation of the United States Magistrate Judge is sustained, adopted and incorporated herein as modified. [Doc. 13]

IT IS FURTHER ORDERED that Defendant's Motion for Summary Judgment [Doc. 12] is GRANTED and Plaintiff's Motion for Summary Judgment [Doc. 9] is DENIED.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

MUMMERT, United States Magistrate Judge.

This is an action under 42 U.S.C. § 505(g) for judicial review of the final decision of John J. Callahan, the Acting Commissioner of Social Security ("Commissioner"), denying Joseph Anderson's ("Plaintiff") application for disability benefits and for supplemental income benefits under Titles II and XVI of the Social Security Act ("the Act"), 42 U.S.C. §§ 401-433, 1381-1383d. Both parties have moved for summary judgment [Docs. 9, 12], and the cause was referred to the undersigned United States Magistrate Judge for a review and recommended disposition pursuant to 28 U.S.C. § 636(b).

Procedural History

When 31 years' old, Plaintiff applied for disability and supplemental security income benefits, alleging a disability as of February 1994 caused by pain in his left arm and shoulder. (R. at 3, 18, 59.)2 Plaintiff's applications were denied initially and on reconsideration. (R. at 45, 58-59, 66.) Plaintiff requested a hearing, which was held on May 3, 1995, before Administrative Law Judge ("ALJ") Myron D. Mills. (R. at 23-40.) The ALJ determined that Plaintiff was not under a disability at any time on or before the date of his decision, and denied the applications. (R. at 15.) The Appeals Council denied review, effectively adopting the decision of the ALJ. (R. at 3.) Thus, the decision of the ALJ stands as the final determination of the Acting Commissioner.

Testimony Before the ALJ

Plaintiff was represented by counsel at the 15-minute hearing and was the only witness.

Plaintiff was born on December 28, 1992, and was 32 years' old at the time of the hearing. (R. at 26.) He testified that he is five feet six inches tall and weighs 125 pounds. (Id.) He was not married and lived his mother. (R. at 26, 38.) He dropped out of school in the ninth grade, but had no further formal or vocational education. (R. at 27, 29.) He has difficulty reading and writing. (R. at 27.) This difficulty has caused him problems in obtaining and maintaining jobs. (R. at 28.)

Plaintiff began working in 1983 but his earnings decreased substantially beginning in 1988. (R. at 29.) Plaintiff attributes the decrease to an operation on his left shoulder and the resulting problems with that arm. (Id.) He had to stop working in 1994 because of problems with his left arm. (R. at 29, 32.) He had to stop driving after his driver's license was revoked for accumulation of too many points. (R. at 36.)

While he was working, Plaintiff was employed in various jobs, e.g., washing dishes, repairing automobiles, and cleaning offices. (R. at 28, 30-31.) His last job was in a bakery. (R. at 32.) He tries to help his mother with the housework, occasionally mows the lawn, and visits with friends when they come over. (R. at 38-39.) He testified that, "There's a lot of jobs out there that I might — I mean know I can have. I don't mind working, but I don't want to mess my arm up [more] than it is now." (R. at 39.)

Plaintiff further testified that he was currently going to a doctor, and had recently gone to the emergency room at Christian Northeast Hospital one night because of the pain in his arm. (R. at 31, 37.) He was given a sling for his arm at the hospital, and he wears it three times a week if his arm is "really hurting [him]." (R. at 37-38.) He has pain in his left arm every night and can only slightly raise it. (R. at 31, 37.)

Medical and Other Records Before the ALJ

Plaintiff completed several forms as part of the application process. One such form was a vocational report dated September 1994, listing five different employers between July 1993 and August 1994. (R. at 89-94.) One job listed was that of taking racks to the oven. (R. at 90-93.) Also in September 1994, Plaintiff completed a work activity report. (R. at 95-98.) That portion of the report which specifies the date after which the described activity was to have occurred was left blank. (R. at 95.) Plaintiff listed one job — a temporary position from February to March 1994 cleaning offices. (Id.) A vocational report was completed for Plaintiff in December 1994, listing four employers between 1981 and July 1994. (R. at 83.) This report does not include any reference to Plaintiff's job in a bakery. (R. at 83-89.)

Plaintiff also completed a disability report the day he applied for benefits, describing his disabling condition as being his left arm and listed February 6, 1990, as the date on which his arm began bothering him. (R. at 105.) He explained that his left arm hurt him every time he picked something up, when he slept on his arm for too long, and when it was raining or cold. (Id..) He listed a doctor he saw at a clinic and noted that he saw the doctor every week. (R. at 106.) A date of "1-25-94" is listed as the date he first saw the doctor, however, and a date of "1-28-94" is listed as the date he last saw the doctor. (Id.) Plaintiff also listed Naprosyn3 as a medication he was taking. (Id.) According to the report, he was admitted to St. Louis University Hospital for an operation on his arm on January 3, 1994, and was discharged on February 8. (R. at 107.) His doctor restricted him to lifting no more than 10 to 15 pounds. (R. at 108.) He listed fishing as his only hobby. (Id.) The interviewer noted on the form that Plaintiff appeared to have some difficulty answering questions, but no difficulty reading or writing. (R. at 112.) The interviewer also noted that Plaintiff had a "slight stuttering problem." (Id.)

A pain questionnaire was completed by Plaintiff a few days after he filed his applications. (R. at 117.) When asked if pain kept him from doing certain movements, Plaintiff noted that he felt pain every time he reached out. (Id.) Plaintiff listed two medications — Motrin, taken three times daily, and Naprosyn, taken three times daily. (Id.) On a pain and daily activities report questionnaire completed in December 1994, Plaintiff listed only Motrin as a medication and stated that the pain stopped for two to three hours after he took the medication. (R. at 118.) He had to stop driving because of the pain and could no longer play baseball. (R. at 119.) A notation at the end of the form explains that Plaintiff did not complete the form because he did not understand all the questions. (R. at 121.) On a supplemental disability report completed the same day, Plaintiff is described as visiting with friends twice a week for an hour and a half and occasionally cutting the grass during the summer months. (R. at 122-23.) He shopped for groceries three times a week with his mother. (R. at 123.)

Plaintiff's residual physical functional capacity was assessed in October 1994. (R. at 67-74.) He was determined to have several exertional limitations, i.e., he could occasionally lift or carry no more than 50 pounds, frequently lift not more than 25 pounds, and stand, walk, or sit about 6 hours in an 8-hour workday. (R. at 68.) His only manipulative limitation was that he could not reach in all directions with his left arm. (R. at 70.) A notation under the "symptoms" portion of the form reads, "pain was considered [a]s credible only when reaching out [and] lifting more than 50 [pounds]." (R. at 72.)

Medical records before the ALJ included a report of a general medical examination of Plaintiff performed in September 1994 and a report of an internal medicine exam of Plaintiff performed at the agency's request in January 1995.

The first report was completed after a 35-minute examination and concluded that, "the consequence of that operation [to prevent Plaintiff's left shoulder from dislocating] is pain with decreased range of motion, both of which were demonstrated on physical exam." (R. at 134.) A range of motion form listed a 110 degree abduction in Plaintiff's left shoulder, a 120 degree forward elevation of his left shoulder, and a fill range of motion in external and internal rotation. (R. at 135.)

The history portion of the second report notes that Plaintiff stated that he injured his left shoulder in 1988, that the injury necessitated surgical intervention, and that the shoulder has gotten progressively worse over the years, causing an increase in pain. (R. at 127.) Plaintiff estimated his maximum lifting capacity to be 30 pounds and reported that he had difficulty with the grip strength in his left hand and was unable to reach out. (Id.) The musculoskeletal portion of the exam revealed the following:

There was no focal tenderness or swelling about the left shoulder joint. He would not abduct his left shoulder beyond 30 degrees and resisted my movement of his shoulder joint. He would not externally or internally rotate this joint at all. He could fully...

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