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Derryberry v. Berryhill

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

March 30, 2017

NANCY A. BERRYHILL, [1]Acting Commissioner of Social Security, Defendant.



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

         I. Background

         On February 18, 2013, Derryberry protectively filed applications for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401, et seq. (Tr. 214-218), and for SSI benefits under Title XVI of the Act, 42 U.S.C. §§ 1381, et seq. (Tr. 206-213). In both applications, she alleged disability beginning June 9, 2009, due to, inter alia, back pain, chronic migraines, asthma, and depression (Tr. 206, 214, 235). The Social Security Administration ("SSA") denied Derryberry's claims on April 29, 2013 (Tr. 149-153). Derryberry filed a timely request for a hearing before an administrative law judge ("ALJ") on June 10, 2013 (Tr. 156). After a hearing held on May 7, 2014 (Tr. 96-121), the ALJ issued a written decision on August 19, 2014, upholding the denial of benefits (Tr. 77-95). Derryberry requested review of the ALJ's decision by the Appeals Council (Tr. 75-76). On November 6, 2015, the Appeals Council denied her request for review (Tr. 1-7). Thus, the decision of the ALJ stands as the final decision of the Commissioner. See Sims v. Apfel 530 U.S. 103, 107 (2000).

         Derryberry filed this appeal on January 7, 2016 (Doc. 1). The Commissioner filed an Answer (Doc. 9). Derryberry filed a Brief in Support of her Complaint (Doc. 11), and the Commissioner filed a Brief in Support of the Answer (Doc. 18). Derryberry did not file a Reply Brief.

         II. Decision of the ALJ

          The ALJ determined that Derryberry met the insured status requirements of the Social Security Act through December 31, 2014, and had not engaged in substantial gainful employment since June 9, 2009, the alleged onset date of disability (Tr. 82). As relevant to this appeal, the ALJ determined that Derryberry had the severe impairments of asthma, lumbar degenerative disc disease, cervical osteoarthritis, and migraines; 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. 82-85). Notably, the ALJ determined that Derryberry's depression and anxiety were not severe impairments, as they did not cause more than a minimal effect on her ability to perform basic work activities (Tr. 83-84).

         After considering the entire record, the ALJ determined Derryberry had the residual functional capacity ("RFC") to perform less than the full range of sedentary work as defined in 20 C.F.R. §§ 404.1567(a) and 416.967. More specifically, the ALJ found that Derryberry had the following limitations: can stand and walk 2 hours per day but at times may have to limit her standing and walking to 30 minutes at a time; can sit 6 hours per day but at times may be limited to sitting for 30 minutes and have to get up for a short time and then sit back down; can lift 10 pounds occasionally and less than 10 pounds frequently; can occasionally bend, stoop, crouch, squat, kneel, and crawl; should avoid climbing ladders or working at heights or around hazardous unprotected moving equipment; needs to avoid extreme temperature, humidity, dust, fumes, poor ventilation, and vibrations; and at times, due to symptoms from physical impairments, may be limited to a simple routine or simple repetitive tasks and could not sustain a higher level of concentration such as work requiring sustained attention to detail (Tr. 85-89). The ALJ specifically noted that, although he was not persuaded by Derryberry's statements regarding the frequency and severity of her migraines, he would nevertheless give her the "benefit of the doubt, " and include in the RFC a limitation to only simple routine or simple repetitive tasks and a limitation on higher levels of concentration to account for possible distractions caused by her migraines (Tr. 88).

         The ALJ found Derryberry unable to perform any past relevant work; however, based on her age, education, work experience, and RFC, the ALJ concluded that there are jobs that exist in significant numbers in the national economy that Derryberry can perform, including final assembler and table worker (Tr. 89-90). Thus, the ALJ concluded that Derryberry had not been under a disability from the alleged onset date of June 9, 2009 through the date of his decision, August 19, 2014 (Tr. 91).

         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 May 7, 2014. The ALJ heard testimony from Derryberry, and George Home, M.S., a vocational expert.

         1. Derryberry's testimony

          Derryberry was 46 years old at the time of the hearing and living with her 14-year-old and 16-year-old sons (Tr. 100). She completed high school, and has a driver's license (Tr. 100, 107). She testified that she has not worked since 2009, when she quit her job as a driver for a meal-delivery service because exposure to her clients' cigarette smoke caused her to have asthma attacks (Tr. 100-102).

         It was Derryberry's testimony that, due to her back pain, she could not lift more than 15 pounds, she had difficulty standing for long periods of time, she can stand for no more than 10 minutes before needing to sit down, she cannot finish washing a full sink of dishes, and she has difficulty cooking (Tr. 103-104). When her back hurts, Derryberry sits down and puts her feet up; when she has migraines, she lies down (Tr. 104). Derryberry does grocery shopping with her husband, but she becomes sore afterward (Tr. 106). When she is able, the goes to church and sings (Tr. 107, 112). She sometimes misses church because of migraines or pain (Tr. 107).

         Derryberry testified that she does household chores "at [her] own pace." (Tr. 111). She does not vacuum or mop because of her back pain (Id.). She is able to dust, but wears a mask on her doctor's advice (IdJ. She cannot mow the lawn, but she and her husband planted a garden with 30 tomato plants (Tr. 111-112). She likes to read, and has "been getting out in the evening and walking around" (Tr. 112). Derryberry likes to fish and camp, but has missed out on a few trips because of her asthma and back pain (Tr. 114-115).

         Derryberry also testified that she takes Topamax for migraines, that her headaches had decreased in intensity and frequency since she started taking the medication, but that they had "started in again" in the prior few months (Tr. 105, 110). She testified that she had "probably had three [migraines]" during the week of the hearing (Tr. 105). Derryberry also testified that she had quit jobs in the past because her migraines "got to the point where [she] just couldn't take it anymore." (Id.").

         Derryberry also testified that she takes medications for depression, and that the medications have helped (Tr. 108-109). She reported having fewer days where it is hard for her to get motivated to get out of bed, that she sometimes feels helpless and hopeless at night, and that she has periods of tearfulness (Id.). Derryberry testified that she sleeps approximately 6 hours per night (Tr. 109).

         2. Testimony of Vocational Expert

         For the first hypothetical, the ALJ asked Mr. Home, a vocational expert, to assume an individual of the claimant's age, education, and work history who is limited to "needing to sit for some time during the [day] with her feet elevated to the level of the waist and for as much as three times a week needs to lie down because of headaches. The person will be unable to stand for more than ten minutes at a time." (Tr. 117). Mr. Home opined that there would be no full-time, competitive employment available for such a person (Id.). For the second hypothetical, the ALJ asked Mr. Home to assume the individual was limited to sitting less than two hours per day and standing ...

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