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Poppe v. Colvin

United States District Court, E.D. Missouri

March 30, 2015

WILLIAM J. POPPE, 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 William J. Poppe's ("Poppe") application for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401, et seq.

I. Background

On August 3, 2010, Poppe filed an application for disability insurance under Title II of the Social Security Act, 42 U.S.C. §§ 401, et seq. (Tr. 127-33) The Social Security Administration ("SSA") denied Poppe's claim on November 2, 2010. (Tr. 72-78) He filed a timely request for a hearing before an administrative law judge ("ALJ") on December 16, 2010. (Tr. 79-80) Following a hearing on June 20, 2012 (Tr. 26-66), the ALJ issued a written decision on August 20, 2012, upholding the denial of benefits. (Tr. 11-21) Poppe requested review of the ALJ's decision by the Appeals Council. (Tr. 7) On November 29, 2013, the Appeals Council denied Poppe's request for review. (Tr. 1-6) Thus, the decision of the ALJ stands as the final decision of the Commissioner. See Sims v. Apfel, 530 U.S. 103, 107 (2000).

Poppe filed this appeal on January 10, 2014. (Doc. 1) The Commissioner filed an Answer. (Doc. No. 10) Poppe filed a Brief in Support of his Complaint.[1] (Doc. No. 14) The Commissioner filed a Brief in Support of the Answer. (Doc. No. 21) Poppe did not file a Reply Brief.

II. Decision of the ALJ

The ALJ determined that Poppe meets the insured status requirements of the Social Security Act through December 31, 2015, and had not engaged in substantial gainful activity since April 17, 2010, the alleged onset date of disability. (Tr. 13) The ALJ found Poppe had the severe impairments of thoracic scoliosis, osteoarthritis, fibromyalgia, and migraine headaches, 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. 13-14)

After considering the entire record, the ALJ determined Poppe had the residual functional capacity ("RFC") to perform light work, except that he could lift and carry no more than 20 pounds occasionally and 10 pounds frequently. (Tr. 14) He could never balance and only occasionally climb, stoop, kneel, crouch, crawl, and climb ramps, stairs, ladders, ropes, and scaffolds. (Id.) Poppe could only occasionally push and pull with his upper extremities and had to avoid concentrated exposure to excessive vibration, hazardous machinery, and unprotected heights. (Id.) The ALJ found Poppe 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 an usher ticket taker, light assembler, and small product combination assembler. (Tr. 19-20) Thus, the ALJ concluded that a finding of "not disabled" was appropriate. (Tr. 21) Poppe appeals, arguing a lack of substantial evidence to support the Commissioner's decision.

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 June 20, 2012. The ALJ heard testimony from Poppe and Bob Hammond, a vocational expert.

1. Poppe's testimony

Poppe was 51 years old at the time of the hearing and living alone. (Tr. 32) He has two adult children. (Id.) He has a high school education. (Tr. 33) Poppe worked as a truck driver for 30 years. (Tr. 45) For the past eight years, up until April 2010, he drove for GC Potterfield. (Tr. 33-34, 44-45) No lifting was involved. (Tr. 44) In addition, Poppe operated a cattle farm, Bill Poppe Farms. (Tr. 45) His children took over the farm in 2002, but it is still in his name until they get the notes paid off. The farm has taken a loss over the past two years. (Tr. 32-35)

Poppe last worked on April 18, 2010 because of pain. He was having migraines six days a week, blurry vision, cramping in his hands and feet, and pain in his legs and back. (Tr. 35-37) Poppe testified his pain was so great that he couldn't focus on his driving. He felt unsafe taking pain killers while driving, "so [I] needed to quit." (Tr. 58) He had been receiving unemployment benefits, but that ran out. (Tr. 33-34) He sought employment after he stopped working in April 2010, but was unsuccessful. (Tr. 46)

Poppe's treating physician is Wendell Nickerson, D.O. (Tr. 37) Poppe testified he has suffered from migraines his whole life. (Tr. 39) He was treating them with Tylenol up until five years ago, when his doctor put him on anti-depressant and seizure medication to help control them. (Id.) The medication helps the top half of his head, but not the bottom half. (Tr. 40) He has had four strokes-two at the age of 18, one at the age of 19, and one in 2010. (Tr. 40) Poppe did not go to the hospital following the stroke in 2010. Poppe stated he knew it was a stroke because the symptoms were the same as the last three, with sharp pain in the right side of his head, then a fuzzy feeling, and then everything on the left side fading away. He was treated with medication at Calvary Medical Center but was not hospitalized. (Tr. 40-41, 50-52, 55) He has no feeling over 40% of his body. (Tr. 56) His residual symptoms include numbness, difficulty walking, and issues with balancing. (Tr. 56-57)

Poppe was diagnosed with fibromyalgia in 2009 by Diane Watson, an alternative medicine provider, who then referred him to Dr. Nickerson (Tr. 41) He also has arthritis in his neck, which he treats with narcotic pain killers 3 to 4 times daily. (Tr. 42) Poppe has been without medical insurance since 2010. (Tr. 33, 42-44)

On a typical day Poppe gets up and showers - "move[s] around, " does a few dishes. Then by around 10:30-11:00, he is drowsy from his medications, so he will sleep for a couple of hours. (Tr. 46) He will watch a movie or sit out on his deck and visit with a neighbor. (Id.) He usually gets tired and weak by mid-afternoon, so he'll sleep for 45 minutes. (Tr. 46-47) Poppe eats dinner and then sits in a chair for a while or lies down. He alternates between sleeping in bed and a chair because of pain in his legs, shoulders and arms. (Tr. 47) He doesn't get much more than three hours of sleep in a night. (Tr. 54) Poppe does his laundry but doesn't fold anything, leaving his clothes in piles. (Tr. 48) He can't stand up to do dishes; some neighbor girls help him with the dishes and other housework. ( Id., Tr. 54) Poppe doesn't drink, smoke or use drugs, other than his prescription medication. (Tr. 49) He has a few friends and will get together with them occasionally. (Tr. 48) He has no hobbies. He used to like to hunt, but says he doesn't have much desire to do anything. (Tr. 49)

Poppe testified that he can stand for about 30-40 minutes, walk for 200 yards, and sit in a padded chair for an hour to an hour and a half. (Tr. 52) He avoids lifting anything so he doesn't strain the muscles in his neck which then triggers a migraine. (Tr. 52-53)

2. Testimony of Vocational Expert

Vocational expert, Bob Hammond, testified regarding Poppe's vocational history as follows. Poppe has been a farmer of livestock, code 421.161-010, with a specific vocational preparation ("SVP") of 7 and classified by the Dictionary of Occupational Titles ("DOT") as heavy work, and a truck driver, code 905.663-014, with an SVP of 4, classified as medium work. (Tr. 61) Because Poppe describes as more toward the light work categories, Hammond classified his past work as somewhere between light and medium (Tr. 61-62)

For hypothetical one, the ALJ asked Hammond to assume a person with the vocational factors identified (aged 48 to 49, high school degree from a technical school, and claimant's past work experience) capable of performing light work with the following limitations: frequently climbing ramps or stairs; occasionally climbing ladders, ropes, or scaffolds; frequently balancing, stooping, kneeling, crouching, crawling; avoiding concentrated exposure to excessive vibration; and avoiding concentrated exposure to hazardous machinery and unprotected heights. He determined that such a person would be unable to perform any of Poppe's past work. (Tr. 62) Such a person would, however, be able to perform a job such as usher/ticket taker, code 344.677-014, SVP of 2, light work. There are 4, 500 such positions locally and 136, 000 nationally. (Tr. 63) In addition, such a person could perform the job of assembler II, code 723.684-018, SVP of 2, light. This position is specific to the lighting industry. There are 5, 600 such positions locally and 204, 000 nationally. (Tr. 63) Finally, there is a combination of small product assembly positions that a person could do, primarily bench assembly, code 706.684-022, SVP of 2, light. There are 3, 400 locally and 148, 000 nationally. (Tr. 63) It was Hammond's testimony that an individual in either of the two assembly positions would have to maintain a 95 percent rate ...


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