Tippie v. Astrue

• Decision Date: 09 June 2011
• Docket Number: No. C10–4076–PAZ.,C10–4076–PAZ.
• Parties: Larraine K. TIPPIE, Plaintiff,v.Michael J. ASTRUE, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Northern District of Iowa

791 F.Supp.2d 638

172 Soc.Sec.Rep.Serv. 8

Larraine K. TIPPIE, Plaintiff,

v.Michael J. ASTRUE, Commissioner of Social Security, Defendant.

No. C10–4076–PAZ.

United States District Court, N.D. Iowa, Western Division.

June 9, 2011.

Patrick H. Tott, Sioux City, IA, Kimberly F. Long, Reimer Law Office, Norfolk, NE, for Plaintiff.Stephanie Johnson Wright, U.S. Attorney's Office, Cedar Rapids, IA, for Defendant.

MEMORANDUM OPINION AND ORDER

PAUL A. ZOSS, United States Chief Magistrate Judge.

Introduction

This matter is before the court for judicial review of a decision by an administrative law judge (“ALJ”) denying the plaintiff's application for disability insurance benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. § 401 et seq. The plaintiff Larraine K. Tippie claims the administrative record (“AR”) does not contain substantial evidence to support the ALJ's decision that she is not disabled.

Tippie filed an application for DIB on July 13, 2007, alleging a disability onset date of July 6, 2007. Her claim was denied initially and on reconsideration. She filed a request for hearing, and a hearing was held before an ALJ on June 3, 2009. Tippie was represented at the hearing by an attorney. Tippie and a vocational expert (“VE”) testified. On July 29, 2009, the ALJ issued his decision, finding that, although Tippie had a severe impairment, Meniere's Disease,¹ her impairment did not reach the Listing level of severity. He also found that she retained the residual functional capacity (“RFC”) to perform her past relevant work both as a housekeeper and as a secretary. Based on these findings, the ALJ decided that Tippie was not disabled for purposes of the Social Security Act.

Tippie filed a timely Complaint in this court seeking judicial review of the ALJ's decision. On September 17, 2010, with the parties' consent, Judge Mark W. Bennett transferred the case to the undersigned for final disposition and entry of judgment. The parties have briefed the issues, and the matter is now fully submitted.

The court must decide whether the ALJ applied the correct legal standards and whether his factual findings are supported by substantial evidence based on a review of the record as a whole. 42 U.S.C. § 405(g); Page v. Astrue, 484 F.3d 1040, 1042 (8th Cir.2007). In this deferential review, the court will consider the record in its entirety to determine whether a reasonable mind would find the evidence adequate to support the Commissioner's conclusion. Pelkey v. Barnhart, 433 F.3d 575, 578 (8th Cir.2006); Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th Cir.2002).

The court first will summarize the testimony at the ALJ hearing, and then will review the other evidence in the record.

Hearing Testimony

At the time of the ALJ hearing, Tippie was fifty-four years old, and was 5'3 3/4? tall and weighed 145 pounds. She was married and lived with her husband. She had a twelfth grade education, with no post-high school education or training. She had a valid, unrestricted drivers' license.

Tippie last worked in July 2007, as the head housekeeper at a motel. She left the housekeeper job because of the developing symptoms of Meniere's disease. She testified that these symptoms caused her to miss work frequently, and her employer was afraid she would have an accident while working. She had problems with her cognitive skills, and was not able to be organized or efficient, so she would make mistakes. She had surgery in April 2007 to help control her symptoms. The surgery helped, but she continued to have problems, so she left her job. She testified that she would not be able to return to any of her past jobs.²

Tippie testified she has episodes during which she is not able to walk straight. She testified that, since the surgery, she still has severe episodes, “just not extreme ones.” She testified, “[T]hey did the surgery on the left side only. The fullness that I feel in the left side of my head, the tinnitus, which is the noise, the rushing and roaring sound is constant. At times, that increases to such a loud roaring, sort of a rushing engine-y sound. It's hard to describe, and that is a temporary thing, but that happens frequently.” AR 30. She testified that the “fullness” is constant. “It's like having a plugged up ear, and [her] head feels stuffed with cotton.” AR 31. Several times a month, the roaring noise increases to the extent it overwhelms her and she needs to lie down. She also has headaches.

Tippie testified that she has vertigo at least “to a slight degree all the time.” She described this as a “movement, motion, swimming kind of feeling” that makes her feel unsteady and unbalanced. She has an episode of vertigo nearly every day, and sometimes more than once a day. Once or twice a week, she has an episode so severe that she has to lie down for between 10 minutes and an hour. Motion, stress, bending over, and standing seem to trigger the vertigo, although sometimes she will have an episode when she is simply sitting down or using a computer. She cannot sit at her computer for two hours without having problems focusing and concentrating. After standing for between 10 and 15 minutes, she has to sit down and rest. However, she has no problem sitting on a couch watching television. AR 38–39.

She does have problems walking. She uses the stairs in her house, but she has to hold on to something when she goes up and down. She avoids escalators. She does not drive a car or climb ladders. She does not believe she could lift more than 10 pounds because “[u]sually when you lift something, your bending, and bending is one of my problems.” AR 40. She testified that she believes she could carry up to 10 pounds, although she also believes that carrying would be more difficult than lifting.

Tippie testified that she takes meclizine for the vertigo, but has not been prescribed any medicine for the tinnitus. She takes Zoloft for depression, which seems to have been brought on by stressful family issues.³ She also takes Thiazide and Serax. She has no side effects from any of her medications. AR 44–45.

Tippie testified that reading used to be one of her favorite pastimes, but now she cannot read for very long because her mind gets muddled and she has to reread passages. AR 26. She used to pay the bills, but now has trouble with addition and subtraction, so her husband has taken over this task. AR 26–27. Her husband has secondary progressive multiple sclerosis, so she is the primary household “keeper upper.” AR 49–50. She dusts and vacuums, but can do only one room per day. AR 43. She also cooks, cleans, and does laundry, but has to do these tasks in stages. AR 44. She can go to the grocery store by herself, if necessary, but is afraid to drive more than a few blocks. Id.

After her surgery, Tippie's doctor told her not to climb ladders and to avoid other situations where she might fall. Otherwise, no doctor has put any limitations on her activities because of Meniere's. AR 52.

The ALJ asked the VE the following hypothetical question:

Assume ... that you are looking at an individual between the ages of 52 and ... 55; high school education individual; work history [the same as Tippie's] an individual with medically determinable impairment causing the same work-related limitations described by Mrs. Tippie in her testimony here today. Finding that testimony to be accurate and factual, what, if anything, are the vocational consequences of that finding?

AR 55. The VE responded as follows:

From an exertional standpoint, she can't do the housekeeper/laborer job, and I think she testified that as far as the secretary, the sitting kind of job, she indicated that some, her cognitive skills, ability to concentrate is not as good, so we would have to rule that one out. Also, I think her ability to sit is less than two hours, and I don't know if that's a total time or, but at any rate, she probably isn't going to be able to sit in a job for long enough to meet the break requirements of a typical kind of job, and then there's also some problems with the episodes of vertigo and the ringing in the ears. Those would probably cause some need to withdraw from the work situation. I think she lays down at times. Although it didn't seem like it was a whole lot, but there are periods of time where she does that. It doesn't stand, her standing tolerance is poor, too. I'm not sure that all this adds up to a full-time work schedule[.]

AR 56.

The ALJ asked the VE a second hypothetical question:

The second hypothetical is intended to ask you about the State Agency's assessment.... Please assume an individual of the same age, education, and work experience as before who could occasionally life or carry 20 pounds, frequently ten pounds; could stand, walk, or sit about six of eight hours with normal breaks; push/pull is unlimited; posturally, postural activities could be performed occasionally with one exception, no climbing of ladders, ropes, or scaffolds; no manipulative limits; no visual limits; no communicative limits; environmental limitations, avoid even moderate exposure to hazardous working conditions. Can we accurately describe this as safe light work? ... Is it consistent with her past work?

AR 56–57. The VE responded as follows:

It's consistent with the secretarial job, clerical work, and it's consistent with the housekeeping job as it's described in the DOT. However, it's not consistent with the way she performed that job. That was at the medium duty level. And the laborer job is to heavy, and she performed it at medium so that's ruled out.

AR 57. The VE clarified that there would probably be “some reduction in the full range of unskilled probably related to the hazards, machinery, heights. There might be some light machine operator unskilled jobs that would be ruled out. However, there would be significant numbers of light jobs that would fit the hypothetical.” Id.

The ALJ asked the VE whether the hypothetical person could perform any of...