Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Hendrickson v. Berryhill

United States District Court, D. South Dakota, Southern Division

November 14, 2018

DANIEL P. HENDRICKSON, Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMM'R OF SOCIAL SECURITY;Defendant.

          MEMORANDUM OPINION AND ORDER

          VERONICA L. DUFFY, UNITED STATES MAGISTRATE JUDGE.

         Table of Contents

         INTRODUCTION .............................................................................................. 1

         FACTS ............................................................................................................ 2

         A. Background and Administrative Overview ............................................ 2

         B. The Medical Evidence. . ........................................................................ 4

         C. Evidence at the Hearing ..................................................................... 18

         1. Mr. Hendrickson's Hearing Testimony ............................................ 18

         2. The Vocational Expert's Testimony ................................................. 24

         D. Post-Hearing Interrogatories .............................................................. 26

         1. Interrogatories to Thomas Audet, the VE ........................................ 26

         2. Interrogatories to John L. Alpar, M.D., an Ophthalmologist ............ 32

         E. ALJ's Decision ................................................................................... 36

         1. Step One ........................................................................................ 36

         2. Step Two ........................................................................................ 36

         3. Step Three ..................................................................................... 36

         4. Step Four ...................................................................................... 37

         5. Step Five ........................................................................................ 42

         F. Mr. Hendrickson's Assignments of Error ............................................ 43

         DISCUSSION ................................................................................................ 44

         A. Standard of Review. . .......................................................................... 44

         B. The Disability Determination and the Five-Step Procedure. . ............... 45

         C. Burden of Proof. . ............................................................................... 47

         D. Did the ALJ Err by Failing to Obtain Professional Assistance to Assess the Impact of Mr. Hendrickson's Mental Impairments? ........... 48

         E. Did the ALJ Err in Assessing Mr. Hendrickson's Credibility? .............. 63

         F. Did the ALJ Correctly Determine Mr. Hendrickson's RFC? ................. 73

         1. The Law Applicable to Determination of RFC .................................. 73

         2. Application of the Law to the ALJ's Decision .................................. 76

         G. Did the ALJ's Decision at Step Five Comply with the Law? ................. 79

         1. Did the ALJ Err in Determining a Significant Number of the Jobs Listed at Step Five Existed? ................................................... 79

         2. Did the Record Lack Substantial Evidence to Support the Mental RFC after the ALJ Dismissed the Functional Limitation Opinions of the Psychiatrist and Psychologist? ............................... 84

         3. Did the Jobs Found by the ALJ at Step Five Match the RFC? ......... 84

         4. Did the Jobs Identified by the ALJ Require Accommodation? .......... 88

         H. Type of Remand ................................................................................. 89

         CONCLUSION ............................................................................................... 91

         INTRODUCTION

         Plaintiff Daniel P. Hendrickson seeks judicial review of the Commissioner's final decision denying his application for disability insurance benefits under Title II and supplemental security income under Title XVI of the Social Security Act.[1] Mr. Hendrickson has filed a complaint and now moves to reverse the Commissioner, requesting the court to reverse the Commissioner's final decision denying him disability benefits and to grant an award of benefits outright without remanding to the agency. In the alternative, Mr. Hendrickson seeks an order reversing and remanding to the agency for a de novo hearing.

         This appeal of the Commissioner's final decision denying benefits is properly before the court pursuant to 42 U.S.C. § 405(g). The parties have consented to this magistrate judge resolving the case pursuant to 28 U.S.C. § 636(c). Based on the facts, law and analysis discussed in further detail below, the court remands for further consideration at the agency level by the Commissioner.

         FACTS

         Mr. Hendrickson provided a detailed statement of the facts in the record. See Docket No. 17 at pp. 3-17. The Commissioner provided a very summary version of facts. See Docket No. 18 at pp. 3-6. The below set of facts is drawn primarily from the plaintiff's facts with supplementation from the Commissioner's statement where there is a variance, and supplementation by the court.

         A . Background and Administrative Overview

         Daniel Hendrickson was born in 1982, one of five children. AR219, 749. He grew up a “military kid” who moved around the country and abroad. His father retired and the family settled in Sioux Falls. Daniel finished high school in 2000, attempted college, but dropped out. AR56, 749, 752. He then worked in 14 jobs. AR268-70. Daniel has never married and has no children. AR737. He has tried apartment-living but eventually moves home. AR749. He did Mormon missionary work[2] and became quite homesick but got through it. AR752. Since 2010 he has lived in his parents' home in Sioux Falls with his brother and sister and her children. AR3, 219.

         Mr. Hendrickson worked at Kmart, Best Buy, Raven Industries, West Telemarketing, C&A Industries, Oriental Trading, Robert Half Corporation, Noll Inc, Quest Corporation, Asurion, Citibank, Wells Fargo, and a temporary Manpower service. AR268-70. He was “on the phones in some type of call situations from 2005 to 2013. He [has] a headset and takes incoming calls which can be pretty frequent and average a length of 10-12 minutes.”[3]

         Mr. Hendrickson filed for concurrent benefits on September 23, 2014, alleging disability since May 28, 2013. AR211-12, 218-21. In his Disability Report, he alleged disability due to Bell's palsy, and keratoconus (left eye worse, right less progressive). AR302.

         The agency decided Mr. Hendrickson last worked on April 29, 2013, when he stopped work at Citibank. AR299. A subsequent job at Wells Fargo which continued on and off from August 19, 2013, to May 24, 2014, was deemed by the agency to be an unsuccessful work attempt. AR298. The agency denied Mr. Hendrickson's claims initially and on reconsideration. AR122-26, 136-58. The agency found no severe physical impairment, no medically determined mental impairment, and no need for a consultative examination. AR88, 90-91, 109-10, 118.

         A hearing before Administrative Law Judge (ALJ) Christel Ambuehl was held on July 29, 2016. AR51-83. Mr. Hendrickson testified at the hearing as did the ALJ's vocational expert (VE), Tom Audet. Following the hearing, Mr. Audet and John Alpar, M.D., an ophthalmologist, responded to interrogatories propounded by the ALJ. AR369-80, 720-27. On January 6, 2017, the ALJ issued an opinion denying benefits. The Appeals Council denied Mr. Hendrickson's request for review, making the ALJ's decision the final decision of the agency.

         B. The Medical Evidence.[4]

         Keratoconus[5], a corneal dystrophy[6], was diagnosed when Mr. Hendrickson was 18. AR398. It became problematic after Bell's palsy was diagnosed in 2013[7] and left him with eyelids that did not blink on the left side. AR479-80, 616.

         He has longstanding[8] anxiety disorders and, in the last few years, recurrent major depressive disorder. AR12, 748, 753. Epigastric pain affecting concentration started in 2005 when Dr. Brett Baloun performed cholecystectomy[9] and took down abdominal adhesions.[10] AR461, 482. He has been diagnosed with irritable bowel syndrome. AR535. He has episodes of diarrhea. AR465-66, 481-84, 488, 492, 494, 521-22, 524, 534.

         The duration of his morbid obesity (AR470, 670-71, 677) is not shown in the record. In April, 2013, a dietitian recorded height and weight as 6' 5” and 372 pounds, BMI 44.11. AR483. Associated with this, Mr. Hendrickson has obstructive sleep apnea diagnosed by Jean Lageson, MD, based on symptoms (sleep disturbance, ongoing fatigue, loud snoring, stops breathing, does not feel rested in the morning). AR670, 699. He has esophagitis (“I do think that his weight is contributing”). AR487-88. His “Grade B reflux and reflux esophagitis[11]” found on EGD caused a voice disturbance when doing telephone work. AR488-89, 502, 505, 507, 512, 525-26. Likely related to morbid obesity, he has a fatty liver.[12] AR487, 492. His overloaded spine and hips[13] show altered physiological joint motion-reduced femoral-acetabular internal and external rotations and reduced trunk rotation, and overactive thoracolumbar back extensors, hip flexors and tensor fascia lata. AR468. Consistent with morbid obesity, Mr. Hendrickson reported decreased endurance and function.[14]AR74, 317.

         His first episode of Bell's palsy[15] occurred in May, 2013, with symptoms including sharp left-face pain, blurred vision in the left, and left hand weakness.[16] AR479-80, 616. To this day he has residual palsy and neuropathic pain and spasms in his face, treated with chronic Cyclobenzaprine[17] (AR463, 471, 478, 637) which makes him drowsy (AR319). His left eyelid still does not fully close. The constant open eye exacerbates his keratoconus because the eye is exposed to the elements and pathogens and is poorly lubricated.

         In mid-2012 Mr. Hendrickson told his family physician, Dr. Mark Rector at Family Medicine, he was concerned about anxiety and racing thoughts. AR517. He stated he worried about “random things.” Id. Dr. Rector prescribed Zoloft[18] (it made him “fuzzy-headed, ” AR319) and Klonopin[19] to calm down his racing thoughts. AR518. They did not help his “panic attacks.” AR516-21, 752. Dr. Rector offered a diagnosis and point of view. “Anxiety … made worse by empty time. He needs to go to work.” “[H]e has missed WEEKS of work for MULTIPLE complaints, which is abnormal by ANY employee standard. Truly the cure for his anxiety is to get back to meaningful work each day.” AR517. Dr. Rector did not then or ever refer his patient to a psychiatrist.

         On October 3, 2013, Rebecca Larson, O.D., optometrist, noted Mr. Hendrickson's problem of blurry vision and dryness since onset of Bell's palsy. AR449. Treatment attempts had included taping the lid shut. He was sensitive to glare and light, had headaches, burning, dryness, eye pain or soreness, itching, redness, and blurred distant vision and near vision. Dr. Larson planned topography of the eye. AR452. She fit his left eye with a lens, but it was difficult to fit and “I was unable to take any of the 4 lenses out of his eyes.” AR455. The technician took out two and the patient took out two. “After fitting these 4 lenses I decided to stop.” Id. “John at Synergeyes … suggested pausing with fingers on lens edge before squeezing or trying rubber gloves/finger cots to help take the lens out.” AR456. After wearing the lens a week, Mr. Hendrickson reported that his vision became blurry after two hours. AR446. On October 30, 2013, Dr. Larson said he was using drops and gel a lot to keep the left cornea from drying out. The right eye lens was still pushing on the cornea; she could see striae.[20] Bell's palsy kept him from blinking properly. AR477.

         Mr. Hendrickson asked Dr. Rector to recommend physical therapy for his problem blinking properly. AR476. Dr. Rector said, “Therapy is not needed for blinking.” AR477.

         On November 4, 2013, Dr. Larson noted persistent eye problems. AR440. She tried one lens after another without success. AR417-38. Getting a contact lens to fit was not easy or simple. AR429, 435, 438, 441. Eye symptoms persisted: responses to glare, headaches, light sensitivity, burning, dryness, eye pain or soreness, itching, redness, blurred distant and near vision. AR423, 426, 427, 429, 430, 440, 449. (Plus there were “billing issues.” AR432, 435.) When it seemed that a good fit had been achieved, vision was pretty good in the morning and a little like tunnel vision toward afternoon. AR434. By the end of December, 2013, Mr. Hendrickson had a better fit, but persistent responses to glare, headaches, light sensitivity, burning, dryness, eye pain or soreness, itching, redness, blurred distant and near vision. AR426. The lens was “okay at first but the more he wears the lens the worse it gets.” AR423. He reported throbbing with the lens and poor vision. AR424.

         Then for a while in January, 2014, he was better and Dr. Larson released him to work. AR423. A week later he was worse again: Dr. Rector assessed double vision, keratoconus of left eye worse after Bell's palsy, and conjunctivitis headache. AR476. He reported conjunctivitis with drainage from the right eye. Id. He would “consider” ophthalmology. Id.

         On January 31, 2014, Dr. Larson said persistent symptoms as before. She told the patient not to wear contact lenses until his eyes cleared; then she would attempt over-refraction. AR418-19. Cross-linking[21] at Vance Thompson Vision was a potential treatment. AR419.

         On February 10, 2014, Dr. Larson said “I am going to call VTV to set the process in motion in regards to a referral to Dr. Schweitzer for further CL fitting.” AR417. On February 17, 2014, at Vance Thompson Vision, Mr. Hendrickson underwent imaging to measure the corneal topography of his eyes. AR388-95. The specialist optometrist, Dr. Justin Schweitzer, noted he had not been able to get a good contact lens fit and had daily headaches lasting all day. Dr. Schweitzer noted the Bell's palsy (AR398); he did not measure the degree of eye exposure due to non-closing eyelids.[22] Two weeks later Dr. Larson recorded that vision still fluctuated and eye symptoms persisted: itchiness, burning, dryness, eye pain or soreness, light sensitivity, blurred distant and near vision. AR412. The “OCT”[23] showed not enough clearance between the cornea and lens; she planned to re-order the left scleral lens. AR413.

         Dr. Larson swapped out the lens, and on April 16, 2014, recorded how Mr. Hendrickson was doing with his “Valley Scleral Lens.”[24] AR409-10. “[W]hen he first puts it in, the vision is good but at half an hour everything goes blurry. If he just leaves it in, it does get better but then if he tries to wear it all day the eye gets really bloodshot and ‘hurts.' ” AR409. She could see inferior and nasal blanching at the edge of the lens. The patient again left his lens at the clinic and Dr. Larson planned to consult with another optometrist on the next lens to order. AR411. Dr. Haier suggested flattening the scleral zone by “1” to see if it helped the blanching and afternoon blur. AR408. On May 14, 2014, Dr. Larson reported the patient doing well, with the lens staying clear four to five hours. AR403. Dr. Larson released Mr. Hendrickson to work half-days “for now.” AR405. It had been 12 months since onset of Bell's palsy. AR479.

         On May 28, 2014, Mr. Hendrickson sought ER treatment for dizziness and intermittent headache since onset of Bell's palsy. “Severe anxiety” was reported in the history section of this medical record, but Mr. Hendrickson did not complain of any anxiety symptoms at this time. AR472.

         On July 9, 2014, he had a 45-minute episode of right-face numbness after taking Flagyl[25] for diarrhea. Flagyl was the potential cause. AR463-64. (He still had left-face numbness. AR463.) On July 11, 2014, Douglas Feise, MD, of Family Medicine, diagnosed a second episode of Bell's palsy, this time on the right. AR462. On July 14, 2014, Mr. Hendrickson saw Dr. Rector. He reported stumbling and losing his balance. AR461. Dr. Rector noted difficulty smiling, squeezing his eyes shut, and a “large constellation of symptoms. Could be related to Bell's palsy, also consider other etiologies. We have elected against further workup….” AR461-62.

         On July 16, 2014, Mr. Hendrickson changed clinics. AR638. Emad Beshai, MD, of Avera Specialty Clinic, recorded a history of insomnia and depression. AR638. He ordered a Brain and Stem MRI, which confirmed right-side Bell's palsy. AR616. Dr. Beshai planned physical therapy.[26] AR639. On August 9, 2014, Mr. Hendrickson was somewhat better. He still had shooting pain and paralysis in his face. He had daytime fatigue warranting a sleep apnea study. AR643-44.

         On December 2, 2015, Khalil Aloreidi, MD, Dr. Kevin Whittle's resident (AR691), recorded the history of Bell's palsy (pain level 8/10) on the left that did not resolve completely and subsequently on the right, resolving almost completely. AR692. “What is bothering him so much is the left-sided facial pain and the eye tearing and itching. Pain killers didn't help much….” Id. Palsy was observable on his lower left face; he had left eye redness and increased secretions. The treatment plan: artificial tears, cover the eye, take Gabapentin and see ophthalmology. AR693.

         On December 30, 2015, Noura Elsedaway, Dr.Whittle's resident, said, “Bell's palsy on each side in the past 2 years … left him with progressive bilateral visual disability and severe post-herpetic neuralgic left hemi-facial pain.” AR689. He complained of depth-perception problems, stating “he misses things when … trying to reach them.” “His vision is rapidly deteriorating.” Id. On exam he had tender, enlarged right occipital lymph nodes. She assessed facial post-herpetic neuralgia.[27] Id. All objective measures of depth perception were normal. Id.

         On January 6, 2016, Mr. Hendrickson saw Avera's Gregory Hill, OD. AR653. Dr. Hill noted eye issues since onset of Bell's palsy. Mr. Hendrickson told Dr. Hill that with his hard contact lens, visual acuity was good for four to five hours and then blurry. AR654. Dr. Hill's assessment and treatment plan (largely unreadable) include ptosis, neuralgia, keratoconus, blur and astigmatism with scleral lens, and OS fogging/deposits. Dr. Hill recommended a different cleaning method. He said the patient was without employment, car or health insurance. Dr. Hill observed that Mr. Hendrickson “First has to deter[mine] how to afford Tx [treatment].” AR654. Dr. Hill noted Mr. Hendrickson was looking into disability, but Dr. Hill wrote “Pt ed[ucated] that [he] first need[s] to exhaust tx[treatment] options for keratoconus.” Id.

         On January 15, 2016, Dr. Aloreidi recorded continuing complaints of an electrical type of pain around his left eye. He reported an opacity on the left cornea.[28][29] AR685.

         In February, Dr. Aloreidi, working under Jean Lageson, MD, said the patient was struggling with facial pain, his Bell's palsy was complicated by neuropathic pain, he had increased trouble sleeping, pain was there all the time, and was worse after exposure to cold wind. Dr. Aloreidi recorded, “Feels anxious all the time.” AR680. The diagnosis was Chronic Neuropathic Pain, history of Bell's palsy. Venlafaxine[30] was added to Nortriptyline.[31] AR681.

         In April, 2016, Mr. Hendrickson saw Dr. Lageson for left facial pain and right lower abdominal pain. He weighed 384, with heart rate 99 and blood pressure 152/95. AR673. He had sleep disturbance, fatigue, and a history of anxiety. AR676. She diagnosed anxiety and morbid obesity. She increased his Venlafaxine because he stated it seemed to help and inquired about obtaining a higher dose. AR677. On May 17, 2016, Mr. Hendrickson's blood pressure was 162/96, and he had had a headache for a week. AR668. Dr. Lageson noted, “He feels anxious all the time….” AR670. He appeared anxious, depressed and fatigued; he had facial paralysis and chronic pain. AR670-71. She diagnosed Depression/Anxiety, Obstructive Sleep Apnea, Fatigue, and Morbid Obesity. She discussed his diet, encouraged exercise, and planned to refer to Sleep Medicine. AR671.

         On May 31, 2016, Jamal Dodin, MD, Dr. Whittle's resident, recorded ongoing symptoms and severe headache. AR661. “He feels anxious all the time and he thinks because he is not getting enough sleep recently.” His headache pain was worse for four or five hours in the morning. AR662. On exam, he had left facial palsy, numbness, and sweating on the left side of his face. AR663. Dr. Dodin prescribed Imitrex.[32]

         On July 19, 2016, (AR697), ten days before Mr. Hendrickson's ALJ hearing (AR51), Dr. Lageson opined that severe anxiety and chronic pain resulted in marked limitations of ability to interact appropriately with the public, supervisors, and co-workers. AR696. She assessed his ability to “make judgments on simple work-related decisions” and to “respond appropriately to usual work situations and to changes in routine work setting” as markedly restricted. AR695-96. She stated reasons: “severe anxiety & chronic pain make concentrating & remembering very difficult” (AR695); and “severe anxiety, self-conscious about facial weakness after an episode of Bell's palsy. Rarely leaves home.” AR696. She assessed his physical status as “significantly overweight & deconditioned. By symptoms he certainly has Sleep Apnea & is beginning to develop pulmonary problems. AR705. She checked “none established” for visual limitations, perhaps meaning that she had not tested him. AR701.

         Dr. Lageson referred Mr. Hendrickson to Heather Chester-Adam, MD, Avera psychiatrist. AR735. On August 16, 2016, she reported his history of always having been somewhat anxious and shy; this had gotten worse when he developed Bell's palsy. Id. He worried about doctor appointments, family events, and going out in public. He knew his face wasn't that noticeable but he worried and ruminated about that. AR736. He had decreased interest levels and decreased energy; outside interests were curtailed due to anxiety. It took much effort to focus attention and concentration. AR736. He felt anxious all the time. Dr. Chester-Adam diagnosed Generalized Anxiety Disorder. AR739. She added Clonazepam to his medications. AR739. She opined, “I feel that with a combination of medication plus therapy, he could regain a lot of functionality and potentially re-enter the workforce.” AR739. Dr. Chester-Adam referred Mr. Hendrickson to Shelley Sandbulte, Ed.D., a licensed psychologist, for therapy. AR748.

         Dr. Sandbulte saw Mr. Hendrickson six times. AR756. She wrote a long report describing his difficulty at college and work, anxious dependence on his parents, agoraphobic anxiety, and self-comforting behaviors. AR749. Dr. Sandbulte described his uneven activities of daily living, depending on if he was having a good day or had to force himself out of his bedroom. AR751. “Daniel's anxiety in the last years has escalated to panic attacks at times. Daniel stays within the four walls of his bedroom/house in an attempt to avoid any social contact and for fear of having a panic attack.” AR752. She diagnosed generalized anxiety disorder, social anxiety, major depressive disorder, recurrent, severe, without psychotic features, and a mood disorder NOS. AR748.

         C. Evidence at the Hearing[33]

         1. Mr. Hendrickson's Hearing Testimony

         At the hearing, Mr. Hendrickson was 34 years old, six feet five inches tall, and weighed a typical-for-him 380 pounds.[34] AR55-56. Mr. Hendrickson graduated high school and had some college courses, but no degree. AR56. He had not been employed since 2013-14 when he worked full time for Wells Fargo bank as an over-the-phone banker. AR56-57. Mr. Hendrickson left this job because he was placed on short-term disability and then was let go. AR57. The disability leave was due to his Bell's palsy and his keratoconus. Id.

         Prior to Wells Fargo, Mr. Hendrickson worked for Citibank providing customer service over the phone. AR58. The Citibank position ended due to Mr. Hendrickson's Bell's palsy. Id. Prior to Citibank, Mr. Hendrickson provided technical support over the phone in Rapid City, South Dakota, for Direct TV for a company called National Electronics Warranty (NEW). AR58-59. The NEW job ended because Mr. Hendrickson wanted to move back home to Sioux Falls to be nearer his family. AR59.

         Mr. Hendrickson testified that two primary things limited his ability to work on a full-time basis: his Bell's palsy and his keratoconus. Id. He was embarrassed by the effect Bell's palsy has had on his face and he found it really hard to go out in public. Id. He testified the left side of his face feels slightly off than what it used to be and was in pain, so he “can't deal with people being around or having to talk to them or see them.” Id. Mr. Hendrickson was fidgety in the hearing, with his hands and feet moving constantly; he testified this was typical of how he was whenever he forced himself to be out in public. AR59-60.

         When Mr. Hendrickson first experienced Bell's palsy, he could not move the left side of his face at all and there was significant pain along the left side, down the jaw line, and his eyes would not close right. AR60. Since the inception of Bell's palsy, Mr. Hendrickson has regained some movement, but the pain has not subsided and he still cannot blink normally. Id. The pain is like a muscle spasm or charley horse and feels like a pinch or burning ache in his cheek area. Id. Medication has helped with the spasming, but the lower level pain is constant. AR60-61. The chronic pain is a “4” on a scale of 1-10, while the spasms are a “7” or an “8” when they occur. AR61. With medication, the spasms occur 2-3 times per day and last about a minute. AR73. He also gets headaches from the Bell's palsy of varying intensities. AR66. Sometimes he can address the headaches with Tylenol, but other times he has to lie down and stay in bed for a while. Id. He has bad pain 2-3 days per week; when they occur he lies in bed approximately 70 percent of the day. AR74. The constant pain interferes with Mr. Hendrickson's ability to concentrate and stay focused. AR61.

         The second factor limiting his ability to work was his vision impairment due to keratoconus. AR59. Without contacts, he cannot see well enough to read. Id. With contacts, a lot of matter and mucus builds up on the contacts because he is unable to close his eyes well and this requires him to frequently remove and clean his contacts. Id. His left eye was more affected than his right eye. AR62. Without contacts, Mr. Hendrickson cannot see anything with his left eye whether the object is near or far. AR62. His left eye cannot be corrected with eye glasses. Id. With a contact, his vision is still “pretty bad, ” but he could start to see, though not well enough to read. Id. With a contact in his right eye, he can read with that eye. Id. Mr. Hendrickson can see a computer screen by using his right eye only and blowing the font up to size 24 [24] or 26 [26].[35] AR73. He cannot see well enough to play video games. AR74-75. He does not watch tv, but he listens to the news. AR75. He occasionally listens to movies. Id. He also listens to books, music, and the radio. AR76.

         Mr. Hendrickson has lived at home with his parents since 2010 because he cannot be financially independent. AR63-64. He has no medical insurance. AR64. At the Avera free clinic, they have tried to assist Mr. Hendrickson obtain medical care through coupons. Id.

         Mr. Hendrickson testified he has had issues with anxiety and Dr. Lageson has been treating him for that by prescribing various medications. AR64. The medications help a little, but not enough. Id. Mr. Hendrickson told the ALJ he had an appointment to see a psychologist in the middle of August, about two weeks after the hearing date. Id. His pain wakes him in the night, making it difficult to get a full night's sleep. AR67. If he knows he has to go out of the house the next day, he may not sleep at all the night before because of the anticipatory anxiety. AR67.

         Mr. Hendrickson experiences some difficulty in following instructions due to loss of concentration. AR64. He testified his ability to carry out simple instructions would vary on a case-by-case basis. AR65. If he was given more complex instructions, or 3-4 instructions at one time, he might be able to carry them out if they were written down, but he “would be worried about it.” Id.

         Mr. Hendrickson finds it really difficult to go out in public or to be around people. Id. Most days he does not leave his house. Id. He could deal with a supervisor one-on-one, but the idea of dealing with a lot of coworkers or members of the public “scares me to death.” Id.

         He takes prescription Venlafaxine and Gabapentin for pain and anxiety. AR66. He takes Claritin to try to keep his eyes from accumulating too much matter. Id. He takes Aleve and Tylenol, Pepto-Bismol and Tums. AR66-67. Mr. Hendrickson testified he did not like to walk long distances or stand for a long time due to his weight. AR56. He tries to walk his dogs around the block, maybe a half mile or a mile if he is feeling really ambitious. AR73-74. Sitting was fine. AR67. He can climb and descend stairs, but has labored breathing afterward. Id. Kneeling is very uncomfortable. Id. Stooping is hazardous as he often has poor vision and misses things and trips. Id.

         His hands are shaky and he cannot see well enough to do fine work. AR68. As an example, he explained he can button his shirt, but cannot color within the lines. Id. When brushing his teeth, Mr. Hendrickson has to manually hold his lips shut because he cannot hold them shut with any pressure on his own. Id.

         Around the house, Mr. Hendrickson said he can cook basic things like macaroni and cheese, ramen noodles, and hot dogs in the microwave. Id. He will sometimes have a family member drive him to the grocery store where he enters and gets out as soon as possible. AR69. If he has to wait in line he generally starts almost panicking. Id. Recently, with his new medicine, he made it to church for the first time in a while, but does not attend any other groups or clubs. Id. Typically, Mr. Hendrickson testified he has 2-3 days per week where his symptoms are so bad he cannot leave the house. Some weeks it is more than 2-3 days. Id.

         Most of Mr. Hendrickson's prior work experience was customer service, but he had one job that was production work. AR70. He stated he could not return to production work because he could not concentrate and would not feel safe operating any heavy equipment. Id.

         Mr. Hendrickson does not drive as he feels he would be putting himself and others in danger if he did. AR63. He has not driven a car since May, 2013. Id. The ALJ asked Mr. Hendrickson why he did not drive. AR70. He responded that he really could not see out of his left eye, which meant half of his field of vision was not available to him. AR70-71. He testified he would be afraid he would fail to see someone on the left side and he would hit them. AR71. No doctor had prohibited Mr. Hendrickson from driving, but Dr. Hill had indicated he might “pull his [driver's] license” if the keratoconus progressed further. Id. The last time Mr. Hendrickson had seen Dr. Hill was January, 2016, (six months prior to the hearing). Id.

         Dr. Hill had recommended a hard contact for Mr. Hendrickson's right eye (at the hearing he had a soft contact for that eye) as well as for the left eye. AR71. Avera had told Mr. Hendrickson he needed to pay $770 for each hard contact for each eye. AR71-72. At the time of the hearing, he was in the process of trying to save up money to buy hard contacts, but did not have the money yet. AR72. He applied to Avera for financial help with the contacts, but he was told he needed to come up with the money up front first. Id.

         2. The Vocational Expert's Testimony

         Thomas Audet testified at the ALJ hearing as well. The ALJ asked Mr. Audet to assume a hypothetical person with Mr. Hendrickson's past work experience and the following limitations:

- can lift and carry 20 pounds occasionally and 10 pounds frequently;
- can stand or walk for two hours in an eight-hour day;
- can sit for six hours in an eight-hour day;
- can occasionally climb ramps and stairs, but should never climb ladders, ropes, or scaffolds;
- can occasionally balance, stoop, kneel, crouch, and crawl;
- should never be exposed to unprotected heights or dangerous heavy machinery;
- can understand, remember, and carry out simple tasks;
- is limited to simple work-related decisions;
- is limited to tolerating changes in a simple work setting;
- can tolerate occasional interaction with coworkers and supervisors, but no interaction with the public.

         AR77-78 (HYPOTHETICAL #1).

         Given this assumed hypothetical person, the ALJ asked Mr. Audet if that person could perform any of Mr. Hendrickson's prior work. AR78. Mr. Audet said “no.” Id.

         The ALJ then asked whether the hypothetical person could perform any other work. Id. Mr. Audet testified the person could do the job of electronics worker at the light exertional level. Id. The job was unskilled and had Dictionary of Occupational Titles (DOT) number 726.687-010. In Minnesota, Iowa, North Dakota and South Dakota, Mr. Audet testified 1, 500 of these jobs were available, with 40, 000 such jobs available nationally. Id.

         Mr. Audet also testified there were sedentary positions the hypothetical person could perform. AR79. The person could be a final assembler (DOT 713.687-018), of which there were 300 jobs regionally, 10, 000 to 12, 000 nationally. Id.

         The ALJ then asked Mr. Audet to assume the limitations from the first hypothetical, and then to assume the additional limitation that the person could not do any job which required good depth perception on the left side. Id. (HYPOTHETICAL #2). Mr. Audet said that would eliminate the job of electronics worker. Id. He then stated the position of jewelry preparer would fit the hypothetical as would the job of “charger.” AR80. There were approximately 300 charger positions available regionally, and 10, 000 nationally. Id.

         The ALJ then asked Mr. Audet to assume all the limitations from the first and second hypotheticals, and add to them the limitation that the person could not do work involving a computer or television screen unless the person could have the ability to increase the font if reading was involved. Id. (HYPOTHETICAL #3). Mr. Audet testified all the jobs he previously laid out would still fit the hypothetical. Id.

         The ALJ then asked what if the person could not reliably see small objects. AR80-81 (HYPOTHETICAL #4). In that case, Mr. Audet testified, none of the previous jobs he described could be performed by the hypothetical person. AR81. Mr. Audet then testified in response to a question from Mr. Hendrickson's lawyer that if the hypothetical person had to miss work for 2-3 days per month he would not be able to perform any of the jobs the expert previously described. Id.

         D. Post-Hearing Interrogatories

         1. Interrogatories to Thomas Audet, the VE

         In post-hearing interrogatories, the ALJ posed a new hypothetical to the VE. AR370. In that hypothetical, the ALJ asked the VE to consider a hypothetical person with the following attributes and abilities:

- person has the past work experience of Mr. Hendrickson;
- person has at least a high school education and was born February 18, 1982;
- person is able to communicate in English;
- can lift and carry 20 pounds occasionally and 10 pounds frequently;
- can stand or walk for two hours in an eight-hour day;
- can sit for six hours in an eight-hour day;
- can occasionally climb ramps and stairs, but should never climb ladders, ropes, or scaffolds;
- can occasionally balance, stoop, kneel, crouch, and crawl;
- should never be exposed to unprotected heights, moving mechanical parts, dust, odors, fumes, pulmonary irritants, or extreme cold or heat;
- may frequently be exposed to humidity and wetness;
- may occasionally operate a motor vehicle;
- is able to avoid ordinary hazards in the workplace such as boxes on the floor, doors ajar, and approaching vehicles and people;
- is able to differentiate differences in shape and color of small objects such as screws, nuts and bolts;
- is able to view a computer screen [no qualifications on this ability];
- is unable to read very small print or ordinary newspaper or book print.

         AR370 (HYPOTHETICAL #5). There were no limitations in the hypothetical about one's ability to concentrate, follow instructions, persist, work around others, tolerate changes, or have contact with the public. Id. There were no limitations in the hypothetical about any need to take a 1- to 3-minute break once an hour to remove and clean one's contacts. Id.

         The VE answered by interrogatory that a hypothetical individual such as the one described above would not be able to perform any of Mr. Hendrickson's past work. AR371. However, the VE answered the hypothetical person could perform the unskilled jobs of: (1) preparer (DOT 700.687-062) of which there were 10, 000 to 12, 000 jobs nationally; (2) charger II (DOT 700.687-026) of which there were 10, 000 jobs nationally; and (3) lens inserter (DOT 713.687-026) of which there were 8, 000 jobs nationally. AR371.

         The ALJ then posed yet another hypothetical to the VE:

- person has the past work experience of Mr. Hendrickson;
- person has at least a high school education and was born February 18, 1982;
- person is able to communicate in English;
- can lift and carry 20 pounds occasionally and 10 pounds frequently;
- can stand or walk for two hours in an eight-hour day;
- can sit for six hours in an eight-hour day;
- can occasionally climb ramps and stairs, but should never climb ladders, ropes, or scaffolds;
- can occasionally balance, stoop, kneel, crouch, and crawl;
- can understand, remember, and carry out simple tasks;
- is limited to simple work-related decisions and is limited to tolerating the changes in a simple work setting;
- can tolerate occasional interaction with coworkers and supervisors but no interaction with the public;
- should never be exposed to unprotected heights, moving mechanical parts, dust, odors, fumes, pulmonary irritants, ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.