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Wibberg v. Colvin

United States District Court, W.D. Missouri, Central Division

September 29, 2014

KENNETH WIBBERG, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

ORDER AND OPINION AFFIRMING COMMISSIONER'S FINAL DECISION DENYING BENEFITS

ORTRIE D. SMITH, Senior District Judge.

Pending is Plaintiff's appeal of the Commissioner of Social Security's final decision denying his application for disability benefits. The Commissioner's decision is affirmed.

I. INTRODUCTION

Plaintiff was born in December 1965, completed high school, and has prior work experience as a tractor-trailer truck driver and as a packager. He alleges he became disabled on May 6, 2011 due to a variety of ailments - notably, heart problems, fatigue, and depression. The ALJ found Plaintiff has the residual functional capacity ("RFC") to perform light work except he cannot work at unprotected heights or drive or operate dangerous equipment. Plaintiff also required a well-set routine, in that he his slow to adapt to frequent and significant changes in the work setting... but can adapt to simple changes" if they were announced in advance and do not occur too often. The ALJ also found Plaintiff needed to avoid unusual work stressors, fast-paced demands, or high levels of social interaction (although he can interact with co-workers, supervisors, and the public). Finally, Plaintiff can "learn and employ new simple and/or detailed instructions." R. at 19. While this RFC precluded Plaintiff from returning to his past work, a vocational expert ("VE") testified (and the ALJ found) Plaintiff could perform work as a cleaner/housekeeper or cashier.

II. DISCUSSION

In this proceeding, Plaintiff contends the ALJ committed two errors. First, he alleges the RFC is not supported by substantial evidence in the Record as a whole because the ALJ failed to accord proper weight to opinions offered by Ms. Deborah Middleton, Dr. Michael Dudenhoeffer, and Dr. Randall Meyer. Second, he contends the hypothetical question posed to the ALJ was improper.

"[R]eview of the Secretary's decision [is limited] to a determination whether the decision is supported by substantial evidence on the record as a whole. Substantial evidence is evidence which reasonable minds would accept as adequate to support the Secretary's conclusion. [The Court] will not reverse a decision simply because some evidence may support the opposite conclusion." Mitchell v. Shalala , 25 F.3d 712, 714 (8th Cir. 1994) (citations omitted). Though advantageous to the Commissioner, this standard also requires that the Court consider evidence that fairly detracts from the final decision. Forsythe v. Sullivan , 926 F.2d 774, 775 (8th Cir. 1991) (citing Hutsell v. Sullivan , 892 F.2d 747, 749 (8th Cir. 1989)). Substantial evidence means "more than a mere scintilla" of evidence; rather, it is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Gragg v. Astrue , 615 F.3d 932, 938 (8th Cir. 2010).

A.

Generally speaking, a treating physician's opinion is entitled to deference. This general rule is not ironclad; a treating physician's opinion may be disregarded if it is unsupported by clinical or other data or is contrary to the weight of the remaining evidence in the record. E.g., Anderson v. Astrue , 696 F.3d 790, 793-094 (8th Cir. 2012); Halverson v. Astrue , 600 F.3d 922, 929-30 (8th Cir. 2010).

1.

For ease of discussion, the Court will start by addressing Plaintiff's arguments regarding Ms. Middleton. Ms. Middleton is a Licensed Clinical Social Worker at Lifesong for Growth and Wellness. Plaintiff began seeing her regularly in October 2011, and in August of 2012 she completed a Medical Source Statement ("MSS") indicating Plaintiff was limited in various areas. In his opening Brief, Plaintiff faults the ALJ for failing to address her opinion. Plaintiff's Brief at 13, 14-15. The Commissioner counters by pointing out that the ALJ did address Ms. Middleton's MSS. The Record confirms the Commissioner's position is correct. R. at 21. Thus, the argument presented - that the ALJ failed to address Ms. Middleton's opinion - must be rejected. Moreover, there is no argument that the ALJ's discussion of her opinion is flawed, so there is no need to further discuss it.

2.

Dr. Dudenhoeffer was Plaintiff's primary care physician. On July 18, 2011, he completed a Medical Source Statement indicating Plaintiff suffered from sleep apnea, airway obstruction, cardiac abnormalities and hypertension. He reported that Plaintiff was using a CPAP machine and suffered multiple attacks of cataplexy (abrupt attacks of muscular weakness) per day. He further opined that Plaintiff suffered from moderate to severe "excessive daytime somnolence" which left him incapable of working. R. at 384-85. That same day, Dr. Dudenhoeffer completed an MSS related to Plaintiff's depression and opined that Plaintiff suffered extreme restrictions on activities of daily living and moderate difficulty maintaining social functioning. He further indicated Plaintiff suffered marked impairments in his ability to understand and remember detailed instructions, maintain attention and concentration for extended periods, ask simple questions, accept instructions and criticism from supervisors, and respond appropriately to changes in the work setting. R. at 387-89.

The ALJ found both reports be worth little weight because they were "inconsistent with [Dr. Dudenhoeffer's] treatment notes, which include few examination findings in support and indicate possible noncompliance with medication." R. at 22. The noncompliance referred to is Plaintiff's failure to use the CPAP machine as directed - a fact documented by a specialist Plaintiff saw on referral from Dr. Dudenhoeffer. The specialist - Dr. Krishna Mettu - reported that "[i]n the last one month or so [Plaintiff] has been using CPAP therapy with compliance" but that he had not been using it for the last year. Dr. Mettu also advised Plaintiff that he had "mild obstructive sleep apnea but it should not contribute to [the] out of proportion fatigue which he has been ...


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