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Berry v. Berryhill

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

July 11, 2018

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


         Plaintiff Patricia Berry (“Berry”) began this case by filing a complaint pursuant to 42 U.S.C. 405(g). In the complaint, she challenged the final decision of the Acting Commissioner of the Social Security Administration (“Commissioner”), a decision based upon the findings of an Administrative Law Judge (“ALJ”).

         Berry maintains that the ALJ's findings are not supported by substantial evidence on the record as a whole.[1] Berry so maintains for two reasons. First, she maintains that her residual functional capacity was erroneously assessed because the ALJ improperly discounted the opinions of Berry's treating nurse practitioner. Second, Berry maintains that the ALJ failed to include a limitation for concentration, persistence, or pace in a hypothetical question the ALJ posed to a vocational expert, the answer to which the ALJ relied upon in finding that Berry is not disabled.

         Berry was born on November 10, 1962, and was fifty-two years old on April 5, 2015, i.e., the day she allegedly became disabled. She filed her applications for disability insurance benefits and supplemental security income payments on May 13, 2015, and alleged that she became disabled as a result of diabetes mellitus (“diabetes”), obesity, heart conditions, hypertension, acid reflux, high cholesterol, anxiety, depression, memory problems, and arthritis.

         Berry ably summarized the evidence in the record, and the Commissioner did not challenge the summary. It will not be reproduced, except to note several matters germane to the issues raised in the parties' briefs.

         The record reflects that in January of 2012, Berry underwent triple bypass surgery. See Transcript at 659. She then received approximately three months of rehabilitation. See Transcript at 449-478. At the conclusion of the rehabilitation period, Berry saw Dr. Jack Havdala, M.D., (“Havdala”), the surgeon who performed the bypass surgery. See Transcript at 338-341. Berry reported that she was doing well. Her blood pressure was 111/83. Havdala noted that Berry's incision was “nearly healed, ” and she could return to work in one month.

         During 2012, Berry saw Dr. Barry Hendrix, M.D., (“Hendrix”) on what appear to have been three occasions. See Transcript at 317-319 (04/17/2012), 313-316 (08/02/2012), 310-312 (11/12/2012). His progress notes reflect that he saw her primarily for diabetes, although he also saw her for arteriosclerotic cardiovascular disease, “dysmetabolic syndrome X, ” and hypertension. Hendrix observed that Berry stood sixty-two inches tall and typically weighed 250 pounds. She appeared to be doing well and had few complaints. Her medications included Percocet and Zoloft.

         Berry sought emergency room care on July 21, 2012, complaining of chest wall pain and muscle strain. See Transcript at 431-448. A chest x-ray was performed, and the results revealed mild cardiomegaly, stable, and no evidence of air space disease. A second chest x-ray was performed approximately seven months later, and the results revealed no acute infiltrate, calcification of the aortic arch, and minimal curvature of the mid-thoracic spine. See Transcript at 430.

         Berry saw Havdala on February 12, 2013, for a follow-up examination. See Transcript at 334-337. His progress note reflects that she had been doing well but had recently begun experiencing pain in her sternum with motion and coughing. Her blood pressure was 136/96. He ordered a CT scan, which was performed two days later. See Transcript at 331-333. The results revealed that her manubrium was not completely fused.

         Berry saw Hendrix on what appear to have been two occasions in 2013. See Transcript at 306-309 (03/26/2013), 304-305 (03/28/2013). His progress notes reflect that she reported no significant changes in her chronic medical conditions. Hendrix observed that Berry weighed approximately 250 pounds, and Berry's blood pressure was relatively stable.

         Berry sought medical care in 2013 for her complaints of chest pain. See Transcript at 405-428 (09/01/2013), 670-678 (09/02/2013), 667-669 (09/06/2013), 658-666 (09/16/2013). Although the results of a September 1, 2013, chest x-ray revealed cardiomegaly, the results of a subsequent chest x-ray were negative. The results of a lexiscan myocardial perfusion study were abnormal, and a cardiac catheterization revealed abnormalities.

         Beginning on November 7, 2013, and continuing through May 27, 2016, Berry was seen by Sarah Hitt, APRN, (“Hitt”) for impairments that included chest pain, diabetes, hypertension, headaches, obesity, and anxiety. See Transcript at 343-344 (11/07/2013), 358-360 (12/27/2013), 355-357 (01/07/2014), 352-354 (02/07/2014), 349-351 (02/27/2014), 345-347 (03/24/2014), 379-381 (04/29/2014), 376-378 (06/26/2014), 372-375 (09/11/2014), 368-371 (01/19/2015), 365-367 (02/19/2015), 361-364 (07/14/2015), 653-656 (10/06/2015), 649-652 (01/15/2016), 637-640 (03/22/2016), 633-636 (05/27/2016). Hitt's progress notes reflect that Berry struggled with her weight, weighing as much as 274 pounds. Berry also had difficulty maintaining a healthy blood pressure as it was recorded to be as high as 164/106. Her physical examinations were nevertheless largely routine, and she was encouraged to “try to walk some on a regular basis.” See Transcript at 655. Notwithstanding her fairly routine physical examinations and the recommendation that she try to walk some, she oftentimes complained of chest pain that made it difficult to walk for any meaningful distance. Hitt prescribed or otherwise continued Berry on medications that included Mobic, Xanax, Metformin, Plavix, and Klonopin.

         Between March 15, 2014, and continuing through July 3, 2016, Berry underwent additional testing, and sought medical care, for her various impairments. See Transcript at 389, 581-587 (03/15/2014); 324-330 (03/18/2014); 551-566 (05/12/2014); 688-689 (08/14/2014); 519-545 (09/30/2014); 487-513, 598-603 (02/06/2015-02/07/2015); 686-687 (02/12/2015); 481-484, 604-613, 828-888 (02/16/2015); 619, 621, 825 (07/14/2015); 790-814 (09/22/2015); 683-685 (01/18/2016); 641-643, 732-769 (01/25/2016); 628-629, 718-731 (05/30/2016); 693-717 (07/03/2016). She was seen primarily for her continued complaints of chest pain, although she also sought care for anxiety. A chest x-ray performed on March 15, 2014, showed no acute filtrate, and the results of three EKGs during the period were within normal limits. A diagnostic coronary angiogram was performed on February 6, 2015, and the diagnoses included angina. On January 25, 2016, Berry underwent cardiac catheterization, the results of which revealed some heart disease. A July 3, 2016, ECG was borderline. She was routinely diagnosed with atypical chest pain and prescribed pain medication.

         On June 20, 2016, Hitt signed a Medical Source Statement-Physical on behalf of Berry. See Transcript at 691-692. Hitt opined that Berry's impairments give rise to the following work-related limitations: 1) Berry can lift and carry less than ten pounds occasionally; 2) she can lift and carry less than ten pounds frequently; 3) she can stand and walk for about two hours in an eight-hour day; 4) she can sit for about five hours in an eight-hour day; 5) she requires frequent rest periods; 6) she requires the opportunity to shift at will from sitting or stand/walking; 7) she is unable to finger; and 8) she must avoid all exposure to extreme cold, extreme heat, high humidity, fumes, odors, dust, gases, and perfumes. With respect to Berry's mental impairments, Hitt opined that Berry has a decreased ability to concentrate and persist in a job setting and needs to be frequently redirected in order to remain on task. Hitt opined that Berry would need to miss about one day of work per month because of doctor's visits. Hitt represented that her opinions were supported by the following objective medical findings: “[coronary artery disease], arthritis, diabetes, depression, obesity, anxiety, and hypertension.” See Transcript at 692. She represented that her opinions covered the period from November 7, 2013, to the present.

         Berry's medical records were reviewed by state agency medical professionals. See Transcript at 63-72, 73-82, 85-95, 97-107. They agreed that Berry is capable of performing the exertional demands of light work with mild to moderate limitations caused by her mental impairments.

         Berry completed a series of documents in connection with her applications for disability insurance benefits and supplemental security income payments. See Transcript at 238-247, 251-252, 254-261, 271-277, 278-284. In the documents, she represented, inter alia, that she has pain in her neck, chest, and back. The pain is exacerbated with exertion. She can stand and/or walk for about one hour before she begins to experience pain but typically has no problem sitting for longer periods of time. She can attend to her own personal care, prepare simple meals, perform some household chores but no yardwork, is able to drive an automobile, and can shop in stores. Berry's hobbies include reading, sewing, and playing games on her computer and the internet. She helps care for her two grandchildren while her daughter works, and Berry spends time with others. Berry has difficulty remembering, concentrating, and following spoken instructions.

         Berry completed a work history report in connection with her applications. See Transcript at 263-268. The report reflects that she worked in the service industry as a logistic coordinator for two periods between December of 2002 and March of 2013. The report also reflects that she worked in the retail industry as a sales clerk/cashier for two periods between August of 2013 and April of 2015, but the work was not substantial gainful activity. A summary of her FICA earnings during those periods reflect good earnings, at least through 2011. See Transcript at 219.

         Berry testified during the administrative hearing. See Transcript at 39-54. She was fifty-three years old at the time and has the benefit of an associate degree. She stands sixty-two inches tall and weighs 262 pounds. She underwent triple bypass surgery in January of 2012, after which she attempted to work part-time. She was unable to do so, though, ...

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