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Perry v. Berryhill

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

October 10, 2018

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


         Plaintiff Kelly Perry (“Perry”), in her appeal of the final decision of the Commissioner of the Social Security Administration (defendant “Berryhill”) to deny her claim for Disability Insurance benefits (DIB), contends the Administrative Law Judge (“ALJ”) erred: (1) in determining her credibility; (2) by drawing his own conclusory inferences from the medical records; (3) by failing to include Perry's deficiencies in concentration, persistence, and pace in hypothetical questions posed to the vocational expert; and (4) by failing to account for her mental limitations in determining her residual functional capacity (“RFC”). The parties have ably summarized the medical records and the testimony given at the administrative hearings conducted on July 24, 2014, and on March 22, 2017. (Tr. 25-59, 392-424). 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 under consideration is from May 31, 2013, Perry's alleged onset date, through April 3, 2017, when the ALJ ruled against Perry.

         The Administrative Hearings:

         Perry, who was 44 years old at the time of the first administrative hearing, has a high school education, and lived with her husband, ten year old daughter, and twenty three year old son. Since the second administrative hearing is more relevant, only a brief review of the first hearing is necessary. Perry testified to suffering a stroke in 2005, returning to work despite problems, and ceasing work as a laundry clerk in 2013. Perry described dealing with physical problems such as carpal tunnel syndrome in her right hand, numbness in her buttocks and privates, instability and weakness in her legs, a bulging disc in her neck, scoliosis, and muscle spasms. Mentally, Perry stated she had attention and concentration issues, anxiety attacks, did not get along with people, and was easily upset. (Tr. 32-51).

         The second administrative hearing occurred after Perry requested a remand of the case for further proceedings. This request was not opposed by Berryhill, and at the outset of the second hearing the ALJ specified that the remand was for the purpose of a more thorough consideration of Perry's mental impairments. (Tr. 452, 395). Perry was 47 when the second hearing was conducted, and was living with her husband, twelve year old daughter, and twenty six year old son. She stated she was 5'6" and weighed 215 pounds. Perry confirmed she last worked as a laundry clerk in 2013, resigning after her health deteriorated since the 2005 stroke, including leg spasms and instability. She indicated she was prescribed a high dosage of Coumadin, and this prevented her from surgeries, including carpal tunnel syndrome surgery, and from taking injections. She described using a prescribed cane on occasion, using a TENS unit on her back, and utilizing a handicapped sticker on her vehicle. According to Perry, her general practice physician was treating her for depression and suggested a referral to a mental health expert. Perry declined this option, explaining that she had a bad experience with mental health care years before.[1] Perry detailed numerous limitations and impairments: her depression left her nervous and fidgety and no longer a “people person”; headaches, including severe headaches once a month which required a day and a half for recovery; inability to clean floors and toilets; limits on fine motor skills, resulting in an inability to cut up food; inability to keep her head straight or tilt her head upwards; inability to shower without help; inability to lean and pick up items; leg spasms; leg instability; sleeplessness and weight gain as side effects to medications; and inability to stand or sit for long periods. (Tr. 415). Perry indicated she drives “very little, ” can reach in front of her, and can lift a gallon of milk. (Tr. 398, 397-416).

         Diane Smith (“Smith”), a vocational expert, stated Perry's past work as a laundry clerk was semi-skilled work performed at the light exertional level. The ALJ posed a hypothetical question to Smith, asking her to assume a worker of Perry's age, education, and experience, who could perform light work where the worker was allowed to use a cane to come and go from the work station on level ground, and allowed to sit or stand while working. Additionally, the job would not require more than frequent reaching and handling duties, would involve simple, routine, repetitive tasks with simple, direct, and concrete supervision, would be a SVP (specific vocational preparation) level 1 or 2 job which could be learned in no longer than thirty days, and would not require more than occasional changes to the workplace setting. Smith responded that such a worker could not perform Perry's past relevant job but could perform other jobs, such as marking clerk or assembler. A second hypothetical question was posed, assuming the same parameters as in the first hypothetical but adding the restrictions that the worker would be off task 25% of the work day due to physical and mental impairments. Smith identified no jobs for the worker described in the ALJ's second hypothetical question. A third hypothetical question was posed, assuming the same parameters as in the first hypothetical but adding a requirement that the worker be in a recliner during portions of their production work time. Smith identified no jobs for the worker described in the ALJ's third hypothetical question. (Tr. 417-420).

         ALJ's Decision:

         In his April 3, 2017, decision, the ALJ determined Perry had the following severe impairments: peripheral neuropathy, late effects of cerebrovascular accident, mild cervical spine degenerative disc disease, spinal cord lesion, cubital tunnel syndrome, obesity, mild carpal tunnel syndrome, anxiety disorder, and depression. The ALJ further determined Perry had the RFC to perform light work with the restrictions which mirrored those posed to Smith in the ALJ's first hypothetical question. The ALJ, citing the appropriate factors, [2] assessed Perry's subjective allegations, finding her statements “not entirely consistent with the medical evidence and other evidence in the record.” (Tr. 374). The ALJ thoroughly discussed the medical evidence, with particular emphasis on the findings of treating physicians Dr. Lance E. Tuetken (“Tuetken”) and Dr. Demetrius S. Spanos (“Spanos”). The ALJ also addressed the 2013 consultative mental evaluation of Dr. Samuel B. Hester (“Hester”), and found the medical evidence did not support the opinions of the state agency physicians who opined Perry could perform semi-skilled light work. Specifically, the ALJ determined Perry has both physical and mental limitations, but further found those limitations were not disabling. Relying upon Smith's testimony that Perry could perform the jobs of marking clerk and assembler, the ALJ concluded Perry was not disabled. (Tr. 366-382).

         Medical Evidence During the Relevant Period:

         Perry was seen often during the relevant period. Treating physician Tuetken saw her roughly eleven times between June 2013 and February 2017. A review of these records shows Perry was consistently treated with anticoagulants[3] and diagnosed with a variety of other impairments. Tuetken's records document Perry's weight gain during the relevant period, moving from 152 pounds in 2013 to 204 pounds in 2017. (Tr. 249, 782). Tuetken's notes also show occasional diagnoses of anxiety and depression, for which Tuetken prescribed various medications. (Tr. 324, 654-657, 649-561, 704-708, 761-764, 780-783). At the outset of the relevant period, on June 4, 2013, Tuetken limited Perry to “no work until Monday.” (Tr. 250). Six days later, Tuetken instructed Perry that she could return to work with no lifting greater than 20 pounds and no repetitive deep bending of the back. (Tr. 253). Tuetken did not impose additional restrictions on Perry.

         The record shows Perry was seen by neurologist Spanos in 2013, then four additional times beginning in 2016. Spanos initially diagnosed sciatic nerve lesion, idiopathic peripheral neuropathy, lumbar radiculopathy, and limb pain. (Tr. 280). He later referred Perry for a nerve conduction study, which found moderately severe entrapment of the left and right ulnar nerves, and mild left and right carpal tunnel syndrome. (Tr. 726-728). Spanos prescribed Nortriptyline and found it effective with Perry's pain, and suggested elbow pads for assistance. (Tr. 717-720).

         Other notable medical entries include the 2013 consultative mental evaluation of Hester, who diagnosed pain disorder and anxiety disorder. Hester concluded Perry could perform most daily activities, though slowly, could communicate and interact in a socially adequate manner, could communicate in an intelligible and effective manner, could cope with the mental demands of basic work tasks, could attend and sustain concentration on basic tasks, could sustain persistence in completing tasks, and could complete work tasks within an acceptable timeframe unless the tasks exacerbate her pain issues. (Tr. 312). Further, in October 2015, it was recommended that Perry attend six physical therapy sessions for her neck pain. She attended the first session, cancelled the second session, and did not appear for the final four appointments. She was discharged for noncompliance. (Tr. 736-751).

         Error in determining Perry's credibility:

         Perry faults the ALJ's credibility analysis, alleging it failed to comply with Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984). As asserted in Perry's brief, Polaski requires the ALJ to consider such matters as: her daily activities; the duration, frequency, and intensity of her pain; the dosage, effectiveness, and side effects of her medications; precipitating and aggravating factors; and functional restrictions. Docket entry no. 12, pages 23-24. In his opinion, the ALJ listed the above factors and indicated he had “given full consideration” to them. (Tr. 373). In addition to this blanket statement, the ALJ cited the inconsistency between Perry's subjective statements and the objective medical evidence, noted Perry's non-compliance with prescribed treatment, her decision to reject Tuetken's suggestion for mental health treatment, reviewed her daily activities, and reviewed her medications, including instances where Perry responded favorably to medication. The credibility assessment of the ALJ is supported by substantial evidence. An ALJ is not required to mechanically address each Polaski factor. See, e.g., Strongson v. Barnhart, 361 F.2d 1066 (8th Cir. 2004). In this instance, Perry urges that the credibility analysis would have been better had the ALJ mentioned Perry's work record, which was excellent. While this may be the case, it is not appropriate for this Court to perform a de novo review of the factors. Rather, our inquiry is whether substantial evidence supports the ALJ's findings. We find that it does. There is no merit to the first claim raised by Perry.

         ALJ erred by drawing his own conclusory inferences from ...

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