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Moreland v. Berryhill

United States District Court, W.D. Arkansas, Fort Smith Division

September 28, 2018

TYLER S. MORELAND PLAINTIFF
v.
NANCY A. BARRYHILL, Commissioner, Social Security Administration DEFENDANT

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HONORABLE MARK E. FORD UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, Tyler S. Moreland, brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of a decision of the Commissioner of the Social Security Administration (“Commissioner”) denying his claims for child's insurance benefits and supplemental security income (SSI) under Title XVI of the Social Security Act (“the Act”), 42 U.S.C. § 1383(c)(3). In this judicial review, the Court must determine whether there is substantial evidence in the administrative record to support the Commissioner's decision. See U.S.C. § 405(g).

         I. Procedural Background

         On February 10, 2014, an application for supplemental security income was filed on behalf of the claimant, who was then a child under the age of 18. (ECF No. 11, p. 262). The alleged date of onset (“AOD”) of Plaintiff's disability was July 1, 2006. (ECF No. 11, p. 262). Plaintiff's application was denied initially and upon reconsideration. (ECF No. 11, pp. 131-151). An administrative hearing was held on February 19, 2015, but no decision was issued. (ECF No. 11, p. 15). The case was then reassigned, and a supplemental hearing was scheduled. (ECF No. 11, p. 15). The supplemental hearing was held telephonically on May 6, 2016. (ECF No. 11, p. 58). Plaintiff testified, and a vocational expert (“VE”), Debra Steele, also testified. (ECF No. 11, pp. 58-79). New records were obtained to further develop the record, and these were then proffered to Plaintiff. Plaintiff subsequently obtained representation and requested another supplemental hearing, which was held on September 9, 2016, in Fort Smith, Arkansas. (ECF No. 11, pp. 80-111). Plaintiff appeared with counsel, Michael Hamby, and testified. (ECF No. 11, pp. 80-111).

         By written decision dated September 16, 2016, the ALJ found that before attaining the age of 18 Plaintiff's grand mal seizures were a severe impairment, but that Plaintiff's impairments did not meet or medically equal the severity of any impairment listed in the Listing of Impairments. (ECF No. 11, pp. 20-21). The ALJ found that before reaching the age of 18 Plaintiff had less than marked limitations in the domains of: acquiring and using information; attending and completing tasks; moving about and manipulating objects; and, caring for himself. (ECF No. 11 pp. 24-29). The ALJ found that Plaintiff had no limitations in the domains of interacting with and relating with others, and health and physical well-being. (ECF No. 11, pp. 24-29). The ALJ found that Plaintiff had not developed any new impairments after attaining the age of 18, and that Plaintiff's grand mal seizures continued to be a severe impairment. (ECF. No. 11, p. 29). After discounting Plaintiff's credibility, the ALJ found that Plaintiff retained the residual functional capacity (“RFC”) to perform a full range of work at all exertional levels, but with the following non-exertional limitations: no exposure to hazards such as unprotected heights, moving mechanical parts, or moving machinery, sharp objects or open flames; no commercial driving; no climbing ladders, ropes or scaffolds; no exposure to extremes of heat or cold, or loud or very loud noise environments; and, no work with fast paced production requirements like production rate pace type work, such as assembly line work. (ECF No. 11, pp. 29-33). With the assistance of a vocational expert, the ALJ determined that jobs exist in significant numbers in the national economy that Plaintiff has been able to perform. (ECF No. 11, pp. 33-34).

         On August 18, 2017, the Appeals Council denied Plaintiff's request for review. (ECF No. 11, p. 1). Plaintiff subsequently filed this action on October 12, 2017. (ECF No. 1). This matter is before the undersigned for report and recommendation. Both parties have filed appeal briefs (ECF Nos. 15, 16), and the case is now ready for decision.

         II. Relevant Evidence

         The undersigned has conducted a thorough review of the entire record in this case. Because the Plaintiff's appeal concerns the limitations resulting from his seizure disorder, the undersigned will recount only the evidence relevant to his claim.

         On March 12, 2013, Plaintiff was examined by Dr. Steve-Felix Belinga. Plaintiff reported that he had experienced a seizure the day before his appointment. (ECF No. 11, p. 420). Plaintiff had been weaned off seizure medication as he had experienced two seizure-free years, and it was believed they were controlled. (Id.). Plaintiff was then experiencing seizures two to three times per week; feeling them come on most often when he was hungry. (Id.). Plaintiff complained of blurred vision, headaches, falls, neck and back pain, as well as occasional stuttering and slurred speech after a seizure. (ECF No. 11, pp. 420, 422). Dr. Belinga increased Plaintiff's Depakote dosage from 500 mg to 750 mg and scheduled an EEG and MRI. (ECF No. 11, p. 423).

         On March 15, 2013, an MRI was done; it was found unremarkable by Dr. Belinga. (ECF No. 11, pp. 429-430). On March 26, 2013, Plaintiff had an EEG. Dr. Belinga noted this as an abnormal awake EEG due to the presence of bursts of generalized slowing of unclear significance. (ECF No. 11, p. 427). Plaintiff had a follow up appointment with Dr. Belinga on March 26, 2013, and he reported no seizures since the last visit. (ECF No. 11, p. 429). Dr. Belinga continued the Depakote dosage without change and instructed Plaintiff to return in three months. (ECF No. 11, p. 430).

         On September 12, 2013, Plaintiff returned to Dr. Belinga for his follow up visit, and he reported having a seizure about two weeks prior to the appointment. Plaintiff also reported he was tired more often with wrestling practice, homework, and school taking up most of his time. (ECF No. 11, p. 434). Dr. Belinga discussed adding the medication Keppra in addition to Depakote, prior to tapering off Depakote. (ECF No. 11, p. 435).

         On October 14, 2013, Plaintiff reported no seizures since the last visit. (ECF No. 11, p. 438). Plaintiff and his father stated that he was seizure free since August of 2013, and had no new complaints, but he needed a refill for his Medication. (ECF No. 11, p. 446).

         On April 14, 2014, Plaintiff saw Nurse Brosnan and reported that he had been seizure free since August of 2013 and needed a medication refill. (ECF No. 11, p. 461).

         On May 14, 2014, Plaintiff saw Nurse Brosnan and Dr. Belinga. Plaintiff reported he had new seizure activity since the last visit. Nurse Brosnan noted that his most recent seizure was May 8, 2014, and that it began after Plaintiff slept all day. (ECF No. 11, p. 450). Plaintiff's father described the seizure as violent, involving violent jerking in all extremities, teeth grinding, eyes rolled back in head, and salivating. The seizure reportedly lasted 7 to 8 minutes, with another fifteen minutes or more before Plaintiff was awake and alert again. (ECF No. 11, p. 449). Dr. Belinga recommended an EEG with a Video EEG in 15 days. (ECF No. 11, p. 450).

         An EEG was performed on May 29, 2014, and Dr. Belinga found it to be unremarkable. (ECF No. 11, p. 464).

         On August 5, 2014 Plaintiff reported that his mother had passed away recently, and he had been feeling depressed. (ECF No. 11, p. 457). He reported seizures a month and a half ago, two weeks ago, and the day before the appointment. (Id.). Dr. Belinga increased Plaintiff's Depakote dosage to 1, 000 mg. (ECF No. 11, p. 459).

         On September 18, 2014 Plaintiff had a follow up appointment with Dr. Belinga. Treatment notes for this visit were very brief, stating only that Plaintiff had a six-year history of seizures, was stable, and to continue current medications. (ECF No. 11, p. 547).

         On October 15, 2014, Plaintiff had a follow up appointment. He reported one seizure since his last visit, and he estimated it was roughly three weeks ago. (ECF No. 11, p. 453). Plaintiff was instructed to follow up with the clinic in six months. (ECF No. 11, p. 455).

         On January 26, 2015, Plaintiff was admitted to the Sparks Regional Medical Center Emergency Department. (ECF No. 11, p. 501). Emergency Department personnel noted that Plaintiff presented with recurrent seizures, and the occurrence was noted. They noted that Plaintiff informed them his last seizure had been three or four months ago, and that he had been advised by his doctor to get his Depakote levels checked. (Id.). His Valproic Acid level (a measure of whether his ...


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