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Vest v. Berryhill

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

January 29, 2018

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


         Plaintiff Dewayne E. Vest (“Vest”), in his appeal of the final decision of the Commissioner of the Social Security Administration (defendant “Berryhill”) to deny his claim for Disability Insurance benefits (DIB) and supplemental security income (SSI), contends the Administrative Law Judge (“ALJ”) erred: (1) in failing to find that he met Listing 11.03 for epilepsy, and in failing to develop the record regarding the listing; and (2) in determining his residual functional capacity (“RFC”). The parties have ably summarized the medical records and the testimony given at the administrative hearing conducted on June 16, 2016. (Tr. 33-66). 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). The relevant period for purposes of Vest's disability determination is from March 19, 2015, through August 10, 2016, the date of the ALJ's decision in this proceeding. The period before March 19, 2015, was adjudicated in a prior decision. (Tr. 69-78).

         Administrative Hearing:

         At the June 2016 administrative hearing, Vest testified that he was 51 years old with a high school education. He stated he was 6'1" and weighed 240 pounds. He confirmed that he last worked on July 29, 2013, when he experienced an overdose of the prescription medication Dilantin. According to Vest, the effects of this incident continue despite his Dilantin levels having returned to normal. The effects include slowed speech, motion and walk. Vest described dealing with seizures throughout his life, and stated he had 3-4 seizures in the week or two preceding the hearing. He described the current seizures as petit mal, with a duration of a few minutes during which he goes blank, his eyes go blank, and his memory “goes out.” (Tr. 40). Vest testified that his worst seizure, occurring in 2010, was a grand mal seizure lasting 2-3 hours. Vest indicated his doctors do not know why he continues to have seizures. He now takes Neurontin for seizures and pain, and stated he was allergic to Dilantin. Vest also noted he has back problems, which worsened after the July 29, 2013 occurrence. He also stated he suffered from arthritis in his hands, restless legs, thyroid problems, depression, headaches, and fatigue. Vest said the fatigue requires him to take it easy for 3-4 hours a day. He conceded that medications were effective in treating his restless legs and depression, and he treats the headaches with over the counter medications.

         Vest described his daily activities to include some yard work, perhaps going to town, watching television, and folding clothes. Although he has a driver's license, Vest stated he did not drive. When going to town or going shopping, his partner drove. The yard work Vest described was a 30-45 minute period of pulling weeds and trimming hedges, although he was careful not to get overheated and felt he could do the outside work only when temperatures were in the 80's or lower and humidity was low.

         Vest stated he was being treated by his primary care physician, and had not been to a neurologist or had tests, such as an EEG, in the previous year or so. According to Vest, his primary care physician had not recommended he see a specialist. (Tr. 38-51).

         John Walls (“Walls”), Vest's partner, testified to last seeing Vest have a seizure four days prior to the hearing. The seizure, according to Walls, lasted less than two minutes. According to Walls, it is difficult to identify when Vest is having a seizure “unless you're having a conversation with him or he tips over.” (Tr. 53). Walls described numerous changes in Vest since the July 29, 2013, incident, stating Vest was “always a go-getter and now he's a do-nothinger.” (Tr. 55). Walls stated Vest's seizures seemed controlled before July 29, 2013, increasing thereafter. Walls cited finances as the reason Vest had not seen a neurologist or been tested. (Tr. 52-59).

         A vocational expert, Dianne Smith (“Smith”), testified that Vest's past relevant work as a janitor or stocker was medium work. The ALJ posed a hypothetical question to Smith, asking her to assume a worker of Vest's age and educational and work background who could perform light work with numerous restrictions.[1] Smith identified the jobs of basic stamper and marking clerk as examples of jobs that such a worker could perform. (Tr. 63-64). A second hypothetical question was posed, asking Smith if jobs would be available if the worker was off task twenty percent of the workday and missed up to three days a month on an unscheduled basis. Smith indicated no jobs were available for such a worker. (Tr. 64).

         ALJ's Decision:

         The ALJ, in his August 2016 decision, found Vest had the following severe impairments: seizure disorder, thyroid disorder, restless leg syndrome, obesity, and depression. He found the impairments, either singly or in combination, did not meet any of the listed impairments in 20 C.F.R Part 404. Specifically, the ALJ considered listings 1.02, 9.00, 11.02, 11.03, and 12.04. In addressing Listing 12.04, the ALJ analyzed the “paragraph B” factors, finding Vest had mild limitations in activities of daily living, moderate difficulties in social functioning and with regard to concentration, persistence, or pace, and that he had experienced no episodes of decompensation. The ALJ determined Vest had the RFC for light work with restrictions which mirrored those posed to Smith at the administrative hearing. The ALJ thoroughly reviewed the objective medical evidence, including the consultative physical examination performed by Dr. Robert Troxel (“Troxel”) in July 2015 and the August 2015 consultative psychiatric assessment by Dr. Samuel Hester (“Hester”). The ALJ assigned “some weight” to Troxel's findings[2] and assigned “great weight” to Hester's findings.[3] Although the ALJ addressed the other impairments alleged by Vest, such as obesity, thyroid disorder, depression, and restless leg syndrome, the primary focus of the ALJ was Vest's seizure disorder. This was warranted, as Vest's testimony at the hearing emphasized the seizures to a greater degree than other impairments. The ALJ summed up his discussion of Vest's seizure disorder:

In sum, the record shows that despite the claimant's reported seizure activity, the objective medical evidence shows grossly normal clinical examination findings in neurological, musculoskeletal and speech. Furthermore, no subsequent evidence other than medication maintenance progress notes, have been submitted since the prior ALJ Decision [on March 18, 2015], which would alter the range of light residual functional capacity of the claimant as set forth above. Finally, the claimant's primary care physician is not recommending any aggressive treatment or referrals to neurology consultations as the claimant is reporting he is doing well on the current medication regimen. Accordingly, the claimant remains capable of a range of light exertion with additional environmental limitations to account for his severe physical impairments, including his seizure disorder.

         (Tr. 22). Relying on the testimony of Smith, the ALJ found Vest was not disabled.

         Claim #1: The ALJ erred in failing to find that Vest met Listing 11.03 for epilepsy, and erred in failing to develop the record regarding the listing.

Vest alleges the ALJ erred at Step two, as he alleges he met Listing 11.03, which requires:
Epilepsy - nonconvulsive epilepsy (petit mal, psychomotor, or focal) documented by detailed description of a typical seizure pattern, including all association phenomena; occurring more frequently than once weekly in spite of at least 3 months of prescribed treatment. With alteration of awareness or loss of consciousness and transient postictal ...

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