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Turner v. Berryhill

United States District Court, E.D. Arkansas, Jonesboro Division

March 6, 2017

NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration DEFENDANT


         Plaintiff Tracie Turner (“Turner”), in her appeal of the final decision of the Commissioner of the Social Security Administration (defendant “Berryhill”) to deny her claim for Supplemental Security Income benefits (SSI), [1] contends the Administrative Law Judge (ALJ) failed to resolve an apparent conflict between the testimony of the vocational expert (“VE”) and the Dictionary of Occupational Titles (“DOT”), and the ALJ improperly rejected the opinion of treating physician Dr. Cagle (“Cagle”). The parties have ably summarized the medical records and the testimony given at the administrative hearing conducted on April 20, 2015. (Tr. 103-125). The Court has carefully reviewed the record to determine whether there is substantial evidence in the administrative record to support Berryhill's decision. 42 U.S.C. § 405(g).

         Turner was 26 years old at the time of the administrative hearing in January 2015. She testified that she lives with her mother and her four-year old daughter; her mother assists in the care of Turner's child; she can drive and is a high school graduate but does not read or do basic math well; her only work experience was a brief stint as a cashier/cook at a restaurant; she wakes up at night with numbness in her hand and a sore neck; she has breathing problems which eliminate her ability to enjoy hobbies; she takes medication prescribed Cagle for breathing problems; she has asthma which affects her ability to cook and clean; she can work for only 30 minutes before needing a 20 minute break; she has arthritis in her right knee and left shoulder; she has had neck and shoulder problems for three months or more; she can lift for a maximum of 30 minutes before needing a break (with the break not always being effective); she has irritable bowel syndrome (“IBS”) and gastroesophageal reflux disease (“GERD”), for which Cagle prescribed medication (which was only sometimes effective); she suffers from cramping and diarrhea, which require her to leave a work station every hour for 20 minutes; she has bad allergies, for which Cagle prescribed medication; and she smokes 1/4 pack of cigarettes daily. (Tr. 107-120).

         A vocational expert, Stephanie Ford (“Ford”), testified at the administrative hearing. The ALJ asked Ford a hypothetical question to determine if there were jobs for a person of Turner's age and education with the ability to perform work with no exertional limitations and the following restrictions: avoid concentrations of dust, fumes, or concentrated exposure to dust, fumes, gasses, odors, smoke, poor ventilation, or other airborne irritants; avoid extreme cold; semi-skilled work where interpersonal contact is routine but superficial; tasks at the job learned by experience with judgment; and supervision is little for routine work but detailed for non-routine work. Ford stated such a worker could perform the job of grocery store clerk. A second hypothetical question was posed, with the ALJ adding the restriction of unskilled work with supervision being simple, direct, and concrete. Ford stated such a worker could perform the jobs of fast food worker and sandwich maker. (Tr. 121-123). If either of the hypothetical questions were altered to require frequent unscheduled breaks of 15-20 minutes, the jobs previously identified, as well as other jobs, would be eliminated for this worker. (Tr. 124).

         In his April 2015 decision the ALJ found Turner had severe impairments of asthma, hypertension, IBS, GERD, and adjustment disorder with mixed depression and anxiety. The ALJ found Turner to have the residual functional capacity which mirrored the description contained in the first hypothetical question posed to Ford. Turner's subjective assertions were found “not entirely credible.” (Tr. 92). The ALJ assigned great weight to the findings of consultative examiner Dr. Troxel, while giving “little weight” to Cagle's opinions. Relying on Ford's testimony, the ALJ found Turner was not disabled. (Tr. 85-97).

         ALJ's failure to resolve an apparent conflict between Ford's testimony and the DOT:

Ford was asked to assume a worker of Turner's age and education who was, among other things, limited to work where interpersonal contact was superficial. Ford identified three jobs (grocery store clerk, fast food worker, and sandwich maker) which the hypothetical worker could perform. Turner reasons that these jobs, which under the DOT require significant contact with people, exceeded the limitations posed by the ALJ. This argument is without merit. As Berryhill notes, the ALJ's hypothetical questions limited the quality, not the quantity, of the interpersonal contact to be encountered in the work setting. Turner does not dispute that the cited jobs require only superficial contact with others, which is precisely what the ALJ described. There was no conflict between Ford's testimony and the DOT. See Hulsey v. Astrue, 622 F.3d 917 (8th Cir. 2010) (vocational expert testified an unskilled worker limited to superficial interpersonal contact could perform the job of cashier - case decided on other grounds).

         ALJ improperly rejected the opinion of treating physician Cagle:

Turner correctly states that a treating physician's opinion is to be given substantial weight and may be disregarded only if persuasive contradictory evidence exists. See, e.g., Prince v. Bowen, 894 F.2d 283 (8th Cir. 1990). Cagle, in a medical source statement dated December 18, 2014, opined the following regarding Turner: she could lift a maximum of 10 pounds occasionally, lift less than 10 pounds frequently, stand and walk about 3 hours, stand and walk 30 minutes without a break, sit about 3 hours, and sit 30 minutes without a break. Cagle also stated Turner needs special workplace requirements for unpredictable nausea/diarrhea causing unscheduled bathroom breaks, frequent rest periods and longer than normal breaks, and to shift at will from sitting or standing/walking. He opined Turner would not have the stamina to complete a work day, work week, or maintain an ordinary work routine, but stated she could reach in all directions for 2/3 of a work day, finger 2/3 of a work day, and handle for 2/3 of a work day. Finally, Cagle found Turner would need to be frequently redirected to remain on task, would need to avoid moderate exposure to extreme cold, extreme heat, high humidity, fumes, odors, dust, gas, perfumes, soldering fluxes, solvents/cleaners, and chemicals, and would miss more than 3 days per month due to her impairments or treatments. (Tr. 964-965).

         The ALJ assigned “little weight” to Cagle's opinion, finding it “inconsistent with Dr. Cagle's own treatment notes, which regularly indicated normal breath sounds and intact gait, strength, and range of motion.” (Tr. 94). The ALJ further noted Cagle's opinion was inconsistent with the overall objective medical evidence, including the findings of consultative examiner Dr. Troxel (“Troxel”). The ALJ assigned “great weight” to Troxel's findings.

         Turner concedes that Troxel's findings are at odds with the findings of Cagle, but argues that “where there is a ‘tie, ' so to speak, the treating doctor's opinion should be given greater weight than the one-time consultative examiner, unless there are good reasons for preferring the consultative doctor.” Docket entry no. 13, page 14. In this instance, we disagree with Turner's characterization of a “tie, ” and find good reasons for affirming the decision of Berryhill.

         Medical records other than those of Cagle: Cagle's opinion is inconsistent with the other medical evidence in the record during the relevant period for purposes of disability. On the alleged date of onset of disability, Turner was seen at the Jonesboro Church Health Center, where she was diagnosed with sinusitis, bronchitis, GERD, IBS, hypertension, and thoracic spine pain. A thoracic spine x-ray yielded normal results. (Tr. 686, 746-748).

         During the relevant period, Turner went to the emergency room at Arkansas Methodist Hospital on six occasions[2], complaining of sinusitis and bronchitis. She was typically treated with antibiotics.

         Turner was first seen by Cagle on January 13, 2014.

         The next day, Turner was seen by Dr. Samuel Hester (“Hester”) for a consultative mental evaluation. Hester diagnosed pain disorder and adjustment disorder with mixed anxiety and depression. Hester opined Turner could drive, communicate and interact in a socially adequate manner, communicate intelligibly, cope with the mental demands of basic work tasks, concentrate on basic tasks, persist in completing tasks, and can ...

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