Poppe v. Berryhill

          MEMORANDUM AND ORDER ^[2]

          JOHN M. BODENHAUSEN, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff William J. Poppe (“Plaintiff”) appeals the decision of the Acting Commissioner of Social Security (“Defendant”) denying his applications for disability benefits under Title II of the Social Security Act, see 42 U.S.C. §§ 401 et seq., and supplemental security income under Title XVI, see 42 U.S.C. §§ 1381 et seq. Substantial evidence supports the Acting Commissioner's decision, and therefore it is affirmed. See 42 U.S.C. § 405(g).

         I. Procedural History & Summary of Memorandum Decision

On January 9, 2014, Plaintiff filed applications for disability benefits, arguing that his disability began on August 20, 2012, as a result of depression, hypertension, degenerative disc disease, migraines, fibromyalgia, memory loss, neck and back pain, numbness and tingling in his extremities, and nausea.^[3] (Tr. 486-93) On February 14, 2014, Plaintiff's claims were denied upon initial consideration. (Tr. 423-27) Plaintiff then requested a hearing before an Administrative Law Judge (“ALJ”). Plaintiff appeared at the hearing (with counsel) on August 27, 2015, and testified concerning the nature of his disability, his functional limitations, and his past work. (Tr. 345-68) The ALJ also heard testimony on that date from Bob Hammond, a vocational expert (“VE”). (Tr. 369-73, 563-64) The VE opined as to Plaintiff's ability to secure other work in the national economy, based upon Plaintiff's functional limitations, age, and education. (Id.) After taking Plaintiff's testimony, considering the VE's testimony, and reviewing the rest of the evidence of record, the ALJ issued a decision on November 17, 2015, finding that Plaintiff was not disabled, and therefore denying benefits. (Tr. 14-24)

         Plaintiff sought review of the ALJ's decision before the Appeals Council of the Social Security Administration (“SSA”). (Tr. 1-6) On November 30, 2016, the Appeals Council denied review of Plaintiff's claims, making the November 2015 decision of the ALJ the final decision of the Acting Commissioner. Plaintiff has therefore exhausted his administrative remedies, and his appeal is properly before this Court. See 42 U.S.C. § 405(g).

         In his brief to this Court, Plaintiff raises one issue, the ALJ's Residual Function Capacity determination is not supported by substantial evidence. Plaintiff argues that the ALJ failed to give controlling weight to his treating physician Dr. Wendell Nickerson's opinions, and challenges the ALJ's adverse credibility determination. The Acting Commissioner filed a detailed brief in opposition contending that the ALJ's decision is based on substantial evidence.

         As explained below, the Court has considered the entire record in this matter. Because the decision of the Acting Commissioner is supported by substantial evidence, it will be affirmed.

         II. The Hearing Before the ALJ

         The ALJ conducted a hearing on August 27, 2015. Plaintiff was present with an attorney and testified at the hearing. The VE also testified at the hearing. (Tr. 345-74)

         A. Plaintiff's Testimony

         Plaintiff began his testimony by noting that he is unable to drive because he takes time released Morphine and Hydrocodone. (Tr. 352) Plaintiff is a high school graduate. Plaintiff's son helps with his bills, and he receives food stamps. (Tr. 353) Plaintiff testified that he last worked in 2010 as a long haul truck driver. Plaintiff's work as a truck driver required him to drive on the road five days a week. (Tr. 369) Plaintiff has been disabled since August 2012 because of his continuous pain caused by migraine headaches and fibromyalgia. (Tr. 353-55)

         Plaintiff testified that he started experiencing migraine headaches as a child and has been on medications for years. (Tr. 355-56) Plaintiff experiences migraine headaches at least three times a month, each lasting twenty-four hours. (Tr. 367) A neurologist diagnosed Plaintiff with fibromyalgia in 2004, and he has been treated with medications. (Tr. 356) Plaintiff testified that he experiences pain across his extremities every day and has had four strokes. (Tr. 357, 359) Plaintiff testified that he has degenerative disc arthritis in his neck and arthritis in his back, and he takes medications for these conditions. (Tr. 358-59) Plaintiff has an enlarged heart and has been wearing a halter monitor for three months. (Tr. 361) Plaintiff takes a fifteen to thirty minute nap once or twice a day because of his fatigue. (Tr. 365-66)

         Plaintiff testified that he can only stand for five to ten minutes. (Tr. 357) Plaintiff can walk a block before he needs to take a break. (Tr. 358) Plaintiff uses crutches. (Tr. 367)

         Plaintiff testified that he experiences swelling in his feet every three to four weeks lasting for three to four days. (Tr. 363) Plaintiff takes medication and elevates his feet in a recliner for most of the day. (Tr. 363-64)

         B. The VE's Testimony

         The VE testified regarding Plaintiff's work history and his current ability to work.

         The ALJ asked the VE a series of hypothetical questions to determine whether someone Plaintiff's age, education, work experience, and specific functional limitations would be able to find a job in the local or national economy. (Tr. 370) The VE responded that such a hypothetical person would be able to perform the light job duties of a cashier II, a housekeeper/maid, and an extrusion press operator. (Tr. 371) The ALJ next asked whether an inability to sit, stand, and walk for a total of eight hours a workday and the need to lie down during the workday would preclude employment. (Tr. 372) The VE advised that such limitations would preclude work. The ALJ further asked whether the need to take unscheduled fifteen minute breaks or to be off task for at least 15 percent of the workday would preclude employment. The VE indicated that such individual would not be able to maintain employment. (Tr. 372) Last, the ALJ asked whether the need to be absent or leave work early at least two times a month would preclude employment. The VE advised that the inability to maintain a normal work schedule would preclude employment. (Tr. 373)

         III. The ALJ's Decision

         In a decision dated November 17, 2015, the ALJ determined that Plaintiff was not disabled under the Social Security Act. (Tr. 14-24) The ALJ determined that Plaintiff had severe impairments of cervical degenerative disc disease, fibromyalgia, osteoarthritis, and obstructive sleep apnea; and non-severe impairments of strokes, cardiac impairment, hypertension, depression, obesity, and migraines. (Tr. 17-18) The ALJ determined that Plaintiff had a residual functional capacity (“RFC”) to perform light work with the following modifications: he could not climb ladders, ropes, and scaffolds; he could occasionally climb stairs and ramps; he could occasionally stoop, kneel, crawl, and crouch; and he must avoid hazards such as unprotected heights and moving and dangerous machinery and concentrated exposure to pulmonary irritants such as dust, fumes, and gases. (Tr. 17)

         The ALJ concluded that Plaintiff could not return to his past relevant work as a truck driver. (Tr. 22) Based on hypothetical questions posed to the VE, the ALJ found that Plaintiff was not under a disability within the meaning of the Social Security Act because someone with his age, education and functional limitations could perform other work that existed in substantial numbers in the national economy. (Tr. 23)

         The ALJ's decision is discussed in greater detail below in the context of the issues Plaintiff has raised in this matter.

         IV. Standard of Review and Legal Framework

         “To be eligible for … benefits, [Plaintiff] must prove that [he] is disabled ….” Baker v. Sec'y of Health and Human Servs., 955 F.2d 552, 555 (8th Cir. 1992); see also Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001). Under the Act, a disability is defined as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A) and 1382c (a)(3)(A). A plaintiff will be found to have a disability “only if [his] physical or mental impairment or impairments are of such severity that [he] is not only unable to do [her] previous work but cannot, considering [his] age, education and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A) and 1382c(a)(3)(B). See also Bowen v. Yuckert, 482 U.S. 137, 140 (1987).

         Per regulations promulgated by the Commissioner, 20 C.F.R § 404.1520, “[t]he ALJ follows ‘the familiar five-step process' to determine whether an individual is disabled…. The ALJ consider[s] whether: (1) the claimant was employed; (2) [he] was severely impaired; (3) [his] impairment was, or was comparable to, a listed impairment; (4) [he] could perform past relevant work; and if not, (5) whether [he] could perform any other kind of work.” Martise v. Astrue, 641 F.3d 909, 921 (8th Cir. 2011) (quoting Halverson v. Astrue, 600 F.3d 922, 929 (8th Cir. 2010)). See also Bowen, 482 U.S. at 140-42 (explaining the five-step process).

         The Eighth Circuit has repeatedly emphasized that a district court's review of an ALJ's disability determination is intended to be narrow and that courts should “defer heavily to the findings and conclusions of the Social Security Administration.” Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir. 2010) (quoting Howard v. Massanari, 255 F.3d 577, 581 (8th Cir. 2001)). The ALJ's findings should be affirmed if they are supported by “substantial evidence” on the record as a whole. See Finch v. Astrue, 547 F.3d 933, 935 (8th Cir. 2008). Substantial evidence is “less than a preponderance, but enough that a reasonable mind might accept it as adequate to support a decision.” Juszczyk v. Astrue, 542 F.3d 626, 631 (8th Cir. 2008); see also Wildman v. Astrue, 964 F.3d 959, 965 (8th Cir. 2010) (same).

         Despite this deferential stance, a district court's review must be “more than an examination of the record for the existence of substantial evidence in support of the Commissioner's decision.” Beckley v. Apfel, 152 F.3d 1056, 1059 (8th Cir. 1998). The district court must “also take into account whatever in the record fairly detracts from that decision.” Id. Specifically, in reviewing the Commissioner's decision, a district court is required to examine the entire administrative record and consider:

1. The credibility findings made by the ALJ.

2. The claimant's vocational factors.

3. The medical evidence from treating and consulting physicians.

4. The claimant's subjective complaints relating to exertional and non-exertional activities and impairments.

5. Any corroboration by third parties of the claimant's impairments.

6. The testimony of vocational experts, when required, which is based upon a proper hypothetical question which sets forth ...