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Apel v. Colvin

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

March 30, 2015

JOHN W. APEL, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM AND ORDER

JOHN A. ROSS, District Judge.

This is an action under 42 U.S.C. §§ 405(g) for judicial review of the Commissioner of Social Security's final decision denying John W. Apel's ("Apel") application for disability insurance benefits Title II of the Social Security Act, 42 U.S.C. § 401, et seq., and supplemental security income ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. § 1381-85.

I. Background

On November 3, 2010, Apel filed an application for disability insurance under Title II of the Social Security Act, 42 U.S.C. §§ 401-434, and for supplemental security income under Title XVI, §§ 1381-1385. (Tr. 174-180, 181-188). The Social Security Administration ("SSA") initially denied Apel's claim on February 14, 2011. (Tr. 94-96). He filed a timely request for a hearing before an administrative law judge ("ALJ") on February 28, 2011. (Tr. 113-14). Following a hearing on July 10, 2012 (Tr. 29-71), the ALJ issued a written decision on July 26, 2012, upholding the denial of benefits. (Tr. 10-23). Apel requested a review of the ALJ's decision by the Appeals Council. (Tr. 5-6). On July 27, 2013, the Appeals Council denied Apel's request for review. (Tr. 1-4). Thus, the decision of the ALJ stands as the final decision of the Commissioner. See Sims v. Apfel, 530 U.S. 103, 107 (2000). Apel filed this complaint on September 24, 2014. (Doc. 1). The Commissioner filed an Answer. (Doc. 11). Apel filed a Brief in Support of his Complaint. (Doc. 23). The Commissioner filed a Brief in Support of the Answer. (Doc. 28). Apel did not file a Reply Brief.

II. Decision of the ALJ

The ALJ determined that Apel meets the insured status requirements of the Social >Security Act through September 30, 2013, and had not engaged in substantial gainful activity since April 3, 2009, the alleged onset date of disability.[1] (Tr. 12). The ALJ found Apel had the severe impairments of diabetes mellitus with insulin dependence and coronary artery disease, but that no impairment or combination of impairments met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 12-17).

After considering the entire record, the ALJ determined Apel had the residual functional capacity ("RFC") to perform sedentary work, except the climbing of ladders, ropes, or scaffolding. (Tr. 18). It was determined that Apel should be limited to occasional exposure to hazards such as temperature extremes, vibration, unprotected heights, dangerous machinery, and other like hazards. (Id.). Additionally, the ALJ determined that Apel should be limited to simple routine tasks. (Id.). The ALJ found Apel unable to perform any past relevant work, but that there are jobs that exist in significant numbers in the national economy that he can perform, including a parking lot attendant, cashier, and information clerk. (Tr. 21-22). Thus, the ALJ concluded that a finding of "not disabled" was appropriate. (Tr. 23).

III. Administrative Record

The following is a summary of the relevant evidence before the ALJ.

A. Hearing Testimony

The ALJ held a hearing in this matter on July 10, 2012. The ALJ heard testimony from Apel and Mr. Gary Wimhold, a vocational expert. (Tr. 30-31).

1. Apel's testimony

Apel was 45 years old at the time of the hearing. (Tr. 34) He is married and has four children, ages 22, 17, 15, and 21. (Tr. 42-43) Apel also has custody of two children through legal guardianship, ages 9 and 2. (Tr. 43) He lives with his wife of 16 years and "all but one" of the children, including a two-year-old grandchild. (Id.) He has a high school education and vocational training from "truck driving school." (Tr. 46) Apel served in the United States Navy for three years before receiving an honorable discharge. (Id.) In a prior hearing held on December 1, 2003, Apel alleged disability based on his heart condition "and something else." (Tr. 34-35) He was denied benefits and returned to work in 2005 through 2009. (Tr. 34-35) He has not applied for any job since 2009. (Tr. 46) In a second hearing held on October 13, 2010, Apel alleged disability based on his heart condition, back pain and diabetes. He has appealed from the decision denying him benefits. (Tr. 35) Apel has never filed a workers' compensation claim, or applied for unemployment benefits. (Tr. 45) His wife does not work and is not disabled. (Id.)

Apel's relevant past work includes long distance truck driver and shipping and receiving clerk. (Tr. 35-36) He drove a truck from 2000 to 2009, but had to take time off for "surgeries and stuff." (Tr. 36) While a truck driver, Apel obtained a commercial drivers license (CDL). (Id.) Apel worked as a shipping and receiving clerk for Everlast from 1993 to 2000. (Tr. 37) In this job he lifted a lot of punching bags, sometimes manually, but also with equipment such as forklifts. (Tr. 36-37) When required, Apel would hand load the bags into a truck. (Id.)

Apel testified he is no longer able to perform his job as a truck driver because his diabetes diagnosis voids his CDL license. (Tr. 37-38) He is insulin dependent and takes four insulin shots a day; one after each meal or one before each meal and then one at night. (Tr. 39). At the time of the hearing his diabetes was not under control, possibly due to an autoimmune response caused by vitiligo, an autoimmune disease. (Tr. 39-40) Apel acknowledged that his vitiligo does not affect his ability to work. (Tr. 40) When asked how the diabetes would affect his work other than the voiding of his CDL license, Apel responded, "I can't really say that it would interfere with it. It's just, I don't know, I can't explain it." (Tr. 41)

Apel also complains of lower back pain and neuropathy from standing so long. (Tr. 38) In general, Apel cannot stand for more than 15 minutes at a time before his feet start to hurt. (Tr. 49-50) It feels as though his feet are swollen. (Tr. 38) He also experiences this feeling in his hands. (Id.) Although not swollen, Apel's hands and feet are painful. (Id.) His doctor advised him to sit down and elevate his feet to help with the pain. (Tr. 50) He does this 6 or 7 times a day for 10 to 15 minutes at a time. (Tr. 38, 49)

Apel describes his hand pain as part of his neuropathy, but also as a feeling similar to arthritis. (Tr. 39) This "arthritis" causes Apel to feel very little in his hands, sometimes even causing him to forget when he is holding a cigarette while he smokes. (Id.) Apel underwent hand surgery in 2006 due to an injury sustained during a "fight." (Tr. 49) There are days when he cannot pick up or properly hold items such as pens or cigarettes. (Tr. 53-54) This could also be caused by muscle spasms that Apel often experiences in his arms and legs. (Tr. 54) According to Apel, the spasms come and go for no reason and last for around 3 to 4 minutes each time. (Tr. 55) Most often, Apel experiences the muscle spasms when attempting to sleep. (Id.)

With regard to his heart disease, Apel claims the stress of lifting forces his heart rate to rise too high and causes him chest pain. (Tr. 41) Apel experiences sharp chest pains 3 to 4 times a day for periods of about 5 minutes. (Tr. 52-53) The pain is likely triggered by self-exertion, but also occurs when Apel is resting. (Id.) It was Apel's testimony that he took "nitro" for his heart condition following triple bypass surgery in 2003, but has not taken the medication in a long time. (Id.) Additionally, during a recent doctor's visit, Apel was informed that he may have a blockage in the lower part of his heart. (Id.) Nonetheless, Apel acknowledged that if he worked at a desk and was not forced to lift, then his heart disease would "probably not" be an issue. (Tr. 41) Recently, Apel was diagnosed with depression and bipolar disorder. (Tr. 55) He has the potential to become angry very quickly both with his family and people he does not know well. (Tr. 56)

In a typical day, Apel will get up early to drink coffee and try to walk, at most, six blocks. (Id.) He then returns home around noon to take a nap with his "daughter, " a child over whom he has legal guardianship. (Id.) Apel testified he must nap due to fatigue. (Tr. 58) After napping, Apel remains up for the rest of the day, occasionally watching television. (Tr. 47-48) Due to fatigue and an inability to stand for extended period of time, Apel does not help with household chores. (Tr. 48) However, he does try to get out of the house to attend his nephew's baseball games. (Id.) Approximately 2 to 3 days a week, Apel experiences increased back pain and must remain in bed. (Tr. 51) On those days, he does not leave his house. (Id.) Recently Apel has been able to get out more as the result of a new medication that has helped him. (Tr. 56-57) Apel has been able to get more exercise than usual, but he still "[doesn't] really exercise a whole lot." (Tr. 57)

The ALJ questioned Apel regarding a May 21, 2012 doctor's visit. (Id.) Apel agreed with the doctor's observation that his lower back pain seemed to be under control through the combined medications of Cymbalta and Gabapentin. (Id.) However, the combination of pain medications only helps for about 4 hours before Apel must take aspirin or Tramadol. (Tr. 51) Similarly, Apel's blood sugar levels were controlled and Apel had denied any outstanding medical problems during his visit. (Tr. 49) According to Apel, Cymbalta makes him tired and dizzy when he ...


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