Derek N. Popp v. Jo Anne B. Barnhart

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-3128
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Derek N. Popp, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the District
* of South Dakota.
Jo Anne B. Barnhart, Commissioner, *
Social Security Administration, * [UNPUBLISHED]
*
Appellee. *
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Submitted: May 16, 2003
Filed: May 22, 2003
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Before LOKEN, Chief Judge, FAGG and MURPHY, Circuit Judges.
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PER CURIAM.
Derek N. Popp suffers from Klinefelter’s Syndrome, a condition causing
variant sexual characteristics due to extra chromosomes. As a teenager, Popp had a
double mastectomy and was treated for self-mutilation. He has undergone drug and
alcohol treatment. Popp suffers from bipolar disorder, schizoaffective disorder, status
post discectomy and fusion, and personality disorder. He graduated from college
with a degree in psychology and sociology, and began working toward a graduate
degree, but was asked to leave the program for inappropriate and unethical behavior.
Popp has held many different jobs, but for short periods of time.
Popp applied for social security disability benefits and supplemental security
income alleging he has been disabled since August 21, 1997. An administrative law
judge (ALJ) found that although Popp suffers impairments, he is not disabled.
Finding substantial evidence supported the ALJ’s decision to deny benefits, the
district court* affirmed. Popp appeals. We must affirm the ALJ’s decision if it is
supported by substantial evidence on the record as a whole. Pearsall v. Massanari,
274 F.3d 1211, 1217 (8th Cir. 2001).
To qualify for disability insurance benefits, a claimant must show he is
disabled. Id. To make this showing, the claimant must establish a medically
determinable physical or mental impairment that has lasted or can be expected to last
at least twelve months, an inability to engage in any substantial gainful activity, and
that the inability results from the impairment. Id. The Commissioner analyzes a
disability claim in five steps: (1) whether the claimant is presently engaged in a
substantial gainful activity; (2) whether the claimant has a severe impairment that
significantly limits the claimant’s physical or mental ability to perform basic work
activities; (3) whether the claimant has an impairment that meets or equals a
presumptively disabling impairment listed in the regulations; (4) whether the claimant
has the residual functional capacity to perform past relevant work; and (5) if not,
whether the Commissioner has proven there are other jobs in the national economy
that the claimant can perform. Id.Here, the ALJ found that although Popp could not return to his past relevant
work, he could perform other jobs existing in significant numbers in the national
economy. Substantial evidence supports this finding. After reviewing Popp’s
records and hearing his testimony, a vocational expert testified there were jobs in the
regional or national economy for a person with the parameters found by the ALJ,
*
The Honorable Karen E. Schreier, United States District Judge for the District
of South Dakota.
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including skill level, exertional level, strength requirements, and social limitations
resulting from Popp’s mental impairments.
Popp argues the ALJ did not pose a proper hypothetical question to the
vocational expert. According to Popp, his history of being unable to maintain
employment should have been considered. A claimant may be unable to engage in
substantial gainful activity when he can find employment and physically perform
certain jobs, but cannot hold the job for a significant period of time. Gatliff v.
Commissioner, 172 F.3d 690, 693-94 (9th Cir. 1999) (citing cases from all circuits);
Dix v. Sullivan, 900 F.2d 135, 138 (8th Cir. 1990); Parsons v. Heckler, 739 F.2d 1334,
1340-41 (8th Cir. 1984); Tennant v. Schweiker, 682 F.2d 707, 710-11 (8th Cir. 1982).
Because jobs lasting less than three months do not constitute substantial gainful
activity for the purposes of work history under the social security regulations, courts
hold the same is true regarding prospective employment. Gatliff, 172 F.3d at 694.
Thus, we have awarded benefits when physical or mental impairments prevented
claimants from sustaining employment. Dix, 900 F.2d at 138; Parsons, 739 F.2d at
1340-41; Tennant, 682 F.2d at 710-11. In this case, however, the ALJ found Popp’s
failure to maintain employment was the result of circumstances unrelated to his
impairments including a car accident, the end of a work release program, and
voluntary resignation.
Substantial evidence on the record as a whole supports the ALJ’s finding that
Popp could perform work other than his past relevant jobs, and thus Popp is not
entitled to disability benefits. Accordingly, we affirm the district court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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