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Dennis Dampeer v. Michael J. Astrue

October 31, 2011


The opinion of the court was delivered by: Magistrate Judge Morton Denlow


Plaintiff Dennis Dampeer ("Claimant") brings this action under 42 U.S.C. § 405(g), seeking reversal or remand of the decision by Defendant Michael J. Astrue, Commissioner of Social Security ("Defendant" or "Commissioner"), denying Claimant's application for Disability Insurance Benefits ("DIB"). Claimant raises the following issues: (1) whether the ALJ properly considered the opinions of Claimant's treating physician; (2) whether the ALJ properly assessed Claimant's credibility; and (3) whether the ALJ properly assessed Claimant's residual functional capacity. For the following reasons, the Court denies Claimant's motion for summary judgment and grants the Commissioner's motion to affirm the Commissioner's decision.


A. Procedural History

Claimant initially filed for DIB on June 12, 2007, alleging a disability onset date of May 7, 2007. R. 114-23. The Social Security Administration ("SSA") denied his application on October 2, 2007. R. 68-71. Claimant then filed a request for reconsideration, which the SSA denied on December 5, 2007. R. 65. Thereafter, Claimant requested a hearing before an Administrative Law Judge ("ALJ"). R. 73-74.

On December 2, 2009, ALJ Karen Sayon presided over a hearing at which Claimant appeared with his attorney, Andrew Marzelle. R. 26-63. In addition to Claimant, Lee Knutson, a vocational expert ("VE"), testified at the hearing. R. 55-60. On April 23, 2010, the ALJ rendered a decision finding Claimant "not disabled" under the Social Security Act. R. 7-25. Specifically, the ALJ found Claimant has "the residual functional capacity to perform sedentary work" and is "capable of making a successful adjustment to other work that exists in significant numbers in the national economy." R. 14, 21.

Claimant then filed for a review of the ALJ's decision to the Appeals Council. R. 5. On July 29, 2010, the Appeals Council denied review, making the ALJ's decision the final decision of the Commissioner. R. 1-4. Claimant subsequently filed this action for review pursuant to 42 U.S.C. § 405(g).

B. Hearing Testimony - December 2, 2009

1. Dennis Dampeer - Claimant

At the time of the hearing, Claimant was forty-six years old, married, and living with his wife, sister, and brother-in-law. R. 34. Claimant completed education through the tenth grade. R. 57. Claimant's most recent employment as a factory baker and top-mixer ended in May 2007 when he stopped working after his second heart attack. R. 41. At that time, he was also employed as a presser at a cleaners. R. 52. Claimant's prior work experience also included work as a forklift driver and banquet setup supervisor. R. 37. He did not file for worker's compensation or unemployment benefits after leaving his last job and has not applied for any jobs since his claim. R. 36. His current source of income is an $834 per month pension. Id.

Claimant testified that he was most recently hospitalized in June 2007. R. 41. Since that time he has had "shortness of breath and drowsiness sometimes and weakness." Id. He experiences shortness of breath only when he is doing activities such as climbing and walking, but not when he is sitting down. Id. Claimant has been diagnosed with sleep apnea and has been using a mask that lets him sleep through the night. R. 47. Shortness of breath, weakness, and drowsiness are the only conditions that Claimant identified as his barrier to working. R. 48.

Claimant testified that he lives on the second floor of a three floor building. R. 34. During a typical day, Claimant wakes up, washes himself, gets dressed, and stays in the house. R. 48-49. During the day he reads and watches tv; he needs to take naps but could not say how often. R. 50. He can wash dishes and make his bed, but can no longer do laundry, work on cars, attend his children's activities, or shop. R. 49-50. He leaves the apartment several times each week to attend doctor appointments. R. 34. While he said he has no problems driving, he is unable to do so because his license is suspended due to unpaid child support. R. 35.

At the hearing, Claimant testified that he is 5'11" and weighs 274 pounds which is more than he weighed at the time of his heart attack. R. 35. During the ALJ's questioning, Claimant testified that he cannot lift more than eight to ten pounds. R. 48. He has no problems sitting and can stand for thirty minutes before needing to sit. Id. When asked by the ALJ whether he could work full-time at a job where he would mostly be sitting and would not lift more than 10 pounds-a sedentary job-Claimant answered "Yes." R. 51. He explained that he would need new glasses. Id.

When questioned by his lawyer, Claimant stated the heaviest thing he lifts is a bottle of water. R. 53. He further explained that he can lift eight to ten pounds before becoming short of breath and that he could carry ten pounds to his car if he stops on his way there. Id. He takes nitroglycerin pills for a heart flutter. R. 54.

2. Lee Knutson - Vocational Expert ("VE")

Lee Knutson testified as a VE. R. 55. The VE described Claimant's previous work as a mixer and machine operator at the bakery, which he categorized as light and skilled work, performed at the medium level. R. 56. The VE described Claimant's work as a banquet supervisor as light and skilled, his work as a presser as medium and semi-skilled, and his work as a forklift operator as heavy and semi-skilled. Id.

The ALJ posed two hypotheticals to the VE, one which was limited only to light work and then one that was limited to sedentary work.*fn1 R. 57-58. The ALJ ultimately adopted the VE's testimony regarding a person limited to sedentary work, the more restrictive of the two.

R. 20. The ALJ described sedentary work as "work that's primarily done seated lifting no more than 10 pounds occasionally, lesser weights more frequently." R. 58. The hypothetical person was of the Claimant's education and work history with the following additional limitations: no climbing ladders, ropes or scaffolding; no exposure to heights or hazards and no climbing of ramps or stairs; and no concentrated exposure to respiratory irritants. Id. The VE testified that the hypothetical person could perform the work of a bench assembler (3300), order clerk (2900), and unskilled security personnel and surveillance system monitor (2200). Id. Finally, the VE testified that an individual needs to be on task at least eighty-five to ninety percent of the time to maintain employment. R. 59.

C. Medical Evidence

1. Dr. Jamal E. Daki - LaGrange Hospital

Claimant's medical records begin on December 10, 2004 when he was admitted to LaGrange Hospital after visiting the emergency room with chest pain. R. 221. Doctors diagnosed Claimant with a heart attack. Id. He underwent an emergency angioplasty to open his blood vessels. R. 214. Claimant also had two stents placed in his blood vessels. Id. Dr. Daki's notes indicate that the procedures had good results and Claimant's condition was much improved. R. 214, 221. Claimant was discharged on December 13, 2005, with prescriptions for Coreg, Lipitor, Plavix, and Vasotec. R. 212.

Claimant visited LaGrange Hospital and Dr. Daki again on May 16, 2005, with complaints of chest pains. R. 217. The chest discomfort was resolved and heparin and aspirin were prescribed, along with the Vasotec, Norvasc, and Plavix he was already taking.

R. 215. Dr. Daki also noted that Claimant continued to smoke and that he was not taking the Plavix as prescribed-skipping doses "two to three days in a row and as long as a week."

R. 214.

2. Dr. Yogesh Tejpal & Dr. Philip Alexander - St. Francis Hospital

Claimant went to the St. Francis Hospital emergency room on December 31, 2005, with chest pain. R. 231, 233. Claimant was discharged the same day with instructions to rest, limit activity, cease smoking ...

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