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Derrick James Herring v. Micahel J. Astrue

December 27, 2012


The opinion of the court was delivered by: Jeffrey T. Gilbert Magistrate Judge


Claimant Derrick James Herring ("Claimant") brings this action under 42 U.S.C. § 405(g) seeking reversal or remand of the decision by Respondent Michael J. Astrue, Commissioner of Social Security ("Commissioner"), in which the Commissioner denied Claimant's application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). This matter is before the Court on the parties' cross motions for summary judgment. [Dkt.##15; 17.] Claimant argues that the Commissioner's decision denying his application for SSI and DIB should be reversed and/or that the case should be remanded for further proceedings. Claimant raises the following issues in support of his motion: (1) whether the Administrative Law Judge ("ALJ") erred by failing to account for Claimant's daytime somnolence*fn1 in assessing his residual functional capacity ("RFC"), and (2) whether the ALJ failed to fully develop the record with regard to Claimant's mental impairments as they relate to Claimant's daytime somnolence. The Commissioner acknowledges the issues raised by Claimant but argues the ALJ's decision is correct and should be Claimant's motion for summary reversal [Dkt. #15] is granted, and the Commissioner's motion [Dkt. #17] is denied.


A.Procedural History

Claimant filed an application for DIB and SSI on December 4, 2007,*fn2 alleging an initial onset date of August 17, 2007. R.136; 139. Claimant's date last insured is December 31, 2012. R.10. The Social Security Administration ("SSA") initially denied his application on March 18, 2008, and again denied his claim upon reconsideration on June 10, 2008. R.74-77; R.80-84. On June 20, 2008 Claimant filed a written request for a hearing before an ALJ. R.88. Claimant appeared with counsel and testified at a hearing before an ALJ on October 13, 2009. R.28. Vocational Expert ("VE") Thomas A. Grzesik and Medical Expert ("ME") James M. McKenna, M.D. also appeared and testified at the hearing. R.27-28.

On May 18, 2010, the ALJ rendered a decision finding Claimant was not disabled under the Social Security Act. R.14. Specifically, the ALJ determined that Claimant "has the residual functional capacity to perform light work as defined in 20 C.F.R. § 404.1567(b) and 416.967(b) except the claimant cannot climb ladders, ropes and scaffolds, only occasionally climb ramps and stairs, balance, stop, kneel, crouch, and crawl. The claimant should avoid heights and moving machinery, and avoid concentrated exposure to dust and fumes. The claimant should not drive commercial vehicles. The claimant can only occasionally feel with the bilateral hands." R.14.

Claimant filed a request for review of the ALJ's decision. The Appeals Council denied his request on August 12, 2011, making the ALJ's decision the final decision of the Commissioner. R.1. Claimant subsequently filed this action for review pursuant to 42 U.S.C. § 405(g).

B.Hearing Testimony

1.Derrick James Herring -- Claimant

At the time of the hearing, Claimant was 42 years old, living with his mother and sister. R.28-29. Claimant has high blood pressure, diabetes, and sleep apnea. R.30. Claimant has a high school education with some college. R.236. He worked as an engineering technician for the City of Joliet for eighteen years. R.233. Claimant was terminated from his job on August 17, 2007 and has not worked since. R.30. After losing his job, Claimant was unsuccessful in his attempt to obtain unemployment compensation. R.30-30.

At the hearing, Claimant testified he has diabetes and his blood sugar is not in control. R.31. He explained that the diabetes causes blurry vision, fatigue, and occasional loss of strength and tingling in his arms and wrists. R.32. Claimant testified that his blurred vision affects his ability to read a newspaper. R.32. Claimant explained that he tries to help around the house, but mostly sleeps. R.32. He stated that the pain in his arms and wrists sometimes renders him unable to pour milk and also affects his ability to complete household chores like mowing the lawn. R.32. Claimant testified he has to take breaks while doing those chores. R.32-33. He also testified that he experiences back pain for which he takes medication. R.33. Sometimes the pain is so severe that he needs help getting up. R.33.

Claimant testified he experiences aching pain in his legs from his hips to his knees. R.33. He stated that he could stand for half an hour before needing to sit down.

R.33-34. Claimant testified he is able to walk a few blocks. R.34.

Claimant stated that he has sleep apnea and uses a CPAP (Continuous Positive

Airway Pressure) machine. He testified he is unable to sleep laying flat because of the mask, so he usually sleeps in a recliner. R.34. Claimant stated that he sleeps for approximately five hours per night with the CPAP machine. R.34. Claimant testified that he uses the CPAP machine five to six days out of the week. R.41. He testified he suffers from fatigue and takes three or four short naps daily, but never feels as though he gets enough rest. R.32, 34-35. Claimant also stated that he sometimes wears the CPAP mask during daytime naps. R.34. Claimant reported that he experiences mood swings, always feels angry, and fears that he cannot provide for himself. R.35.

Claimant reported that he tries to do some household chores some days. R.36. Claimant testified that he does his laundry, mops, vacuums, and occasionally cooks.

R.37. When he does have the energy to do so, however, he has to take several rest breaks. R.36. Claimant drives three times per week. R.37. He also testified that he has friends and attends church once a month. R.37. Claimant stated that he is "usually at home, that's about it." R.37.

Claimant experienced kidney failure while he was still employed. R.35. He testified he went to the emergency room and was hospitalized for kidney failure but has not sought subsequent treatment for that issue. R.35-36. Claimant takes medication for diabetes, blood pressure, back pain, and restless leg syndrome, and he takes them most of the time. R.38; 40. He reported experiencing side effects of fatigue and sleepiness from the medication. R.38. Claimant stated that the blood pressure medication also gives him migraine headaches. R.38. Claimant does not smoke or drink, and had not imbibed any alcohol for two months prior to the hearing. R.38; 40.

In addition to his diabetes, sleep apnea, hypertension, and back pain, Claimant testified that he has a lumpy neck and his parotid glands bother him. R.43-44. He had not recently been retested for sarcoidosis and had not had an eye exam since February of 2008. R.44. At the time of the hearing, Claimant was 5'11" tall and weighed 220 pounds. R.44.

2.James M. McKenna -- Medical Expert ("ME")

At the hearing, the ME testified that Claimant was diagnosed with adult onset diabetes in March 2007. R.44. The ME explained that fluctuations in Claimant's vision could be due to fluctuations in Claimant's blood sugars, and that Claimant's diabetes is poorly controlled. R.46-47. The ME testified that Claimant does not have significant peripheral neuropathy. R.46-47. He noted that Claimant experienced one episode of acute renal failure and is back to normal in that respect. R.47. The ME expressed a lack of understanding of why Claimant's diabetes is uncontrolled in light of Claimant's diet, medications, and compliance with follow-up visits. R.47. He stated, "It doesn't tally very well." R.47.

The ME testified that Claimant has obstructive sleep apnea and described Claimant as "fairly compliant" with the CPAP. R.48. He reported a "disconnect" between Claimant's reported compliance with the CPAP and Claimant's reported health status. R.48. The ME did not see anything about Claimant's back pain in his medical records. R.48-49. He opined that Claimant could have pain and functional back problems from sleeping in a recliner. R.49.

The ME calculated Claimant's body mass index ("BMI") to be 30-"barely ring[ing] the obesity bell." R.49. The ME stated again that Claimant's status and the available medical evidence didn't "gel." R.50. He suggested that a mental impairment such as depression could "fill the gap and explain why the performance standards are different from the physical standards." R.50.

In response to questioning from the ALJ, the ME stated that, based on a sleep study, Claimant had "excessive hypersomnolence." R.50. According to the ME, uncontrolled sleep apnea causes feelings of being constantly tired and can engender secondary depression. R.51. The ME clarified that his testimony regarding sleep apnea and depression was just a suggestion and not the ME's area of expertise. R.51. The ME suggested the following work restrictions: avoid ropes, ladders, scaffolds, unprotected heights, concentrated exposure to moving machinery, and driving mechanical vehicles such as forklifts. R.50.

Answering questions from Claimant's counsel, the ME testified that blurry vision and difficulty reading occur when blood sugar levels fluctuate, as opposed to when adult onset diabetes is either persistently controlled or uncontrolled. R.55-56. The ME also described sleep apnea and its effects. R.56-59. He testified sleep apnea causes people to "wake like a spent rag . . . . not fit for the fight." R.59. The ME testified that sleep apnea can exacerbate depression but not vice versa. R.60.

3.Thomas Grzesik -- Vocational Expert ("VE")

The VE described Claimant's past relevant work as a municipal engineer technician, which he categorized as light skilled work. R.62. While questioning the VE, the ALJ asked whether a 42-year-old individual with the same education and work experience as Claimant could perform his past relevant work if he had the following restrictions on his residual functional capacity to perform light work: he can lift and carry 20 lbs. frequently and 10 lbs. occasionally; he can stand and walk six hours in an eight hour day and sit two hours in an eight hour day; he cannot climb ropes, ladders, or scaffolds; he can occasionally climb ramps and stairs with occasional balancing, stopping, kneeling, crouching or crawling; he should avoid unprotected heights, dangerous moving machinery, concentrated exposure to dust and fumes, and cannot drive commercial vehicles. R.62. The VE testified that the hypothetical person could not perform Claimant's past work. R.62. The VE testified that the hypothetical person could perform light unskilled work. R.62. He stated that light unskilled jobs were available in the region, such as cashier (20,000 jobs in the region), sales attendant (32,000 jobs in the region), and office helper (6,000 jobs in the region). R.62-63.

The ALJ altered the hypothetical to add that the person would be limited to occasional feeling in his/her bilateral hands. R.63. The VE testified that the additional restriction would not have a significant effect on the available jobs because they are not "feeling sensitive." R.63.

The ALJ then changed the hypothetical from light work to sedentary work with the other limitations staying the same. R.63. The VE testified that the hypothetical person would not be able to perform Claimant's past relevant work or the jobs that the VE described in response to the first hypothetical. R.63. The VE testified that the new hypothetical person could perform sedentary, unskilled jobs in the regional economy, such as callout operator (8,000 jobs in the region), information clerk (7,500 jobs in the region), and order clerk (1,000 jobs in the region). R.63-64.

In response to questioning from Claimant's attorney, the VE testified that for both light and sedentary work, taking naps and getting "real sleep" during ...

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