United States District Court, E.D. Arkansas, Jonesboro Division
ORDER
Plaintiff
Steve Conrey (“Conrey”) appeals the final
decision of the Commissioner of the Social Security
Administration (defendant “Berryhill”) to deny
his claim for Supplemental Security Income
(“SSI”). Conrey contends the Administrative Law
Judge (“ALJ”) erred in the following ways: (1)
failing to credit the treating physician's opinion on
limitations in fingering and handling or, in the alternative,
failing to develop the record on his ability to finger and
handle; (2) failing to properly determine his residual
functional capacity (“RFC”); and (3) failing to
identify jobs which he could perform, failure to obtain a
reasonable explanation for contradictions between testimony
of the vocational expert and the Dictionary of
Occupational Titles (“DOT”), and failing to
elicit any vocational evidence regarding limitations in
fingering or handling. The parties ably summarized the
medical records and the testimony given at the administrative
hearing, which was conducted on August 29, 2017. (Tr. 9-34).
The Court has carefully reviewed the record to determine
whether there is substantial evidence to support
Berryhill's decision. 42 U.S.C. § 405(g). The
relevant period to be considered is from April 21, 2016,
Conrey's application date, through April 2, 2018, the
date the Commissioner issued her decision.
The
Administrative Hearing:
Conrey,
a high school graduate, was 47 years old at the time of the
administrative hearing, with past relevant work as a dump
truck driver, melter in a factory, and petroleum truck
driver. Conrey identified his medical problems as diabetes,
peripheral neuropathy radiating from his feet through his
knees and hips, numbness and tingling in his hands, high
blood pressure, chronic obstructive pulmonary disorder
(“COPD”), asthma, hyperhydrosis, muscle spasms in
his arms, and arthritis in his major joints. According to
Conrey, his diabetes is unpredictable and results in
emergency hospital visits. He indicated his numbness in his
hands and feet has been present for about two and a half
years. Conrey estimated he could stand for 10-15 minutes,
walk for 5-6 minutes, lift 10-15 pounds, and sit for 15-20
minutes. He listed the following medications he was taking:
Novolog, Meloxicam, Advair disc, Sertaline, an inhaler,
Gabapentin, Tramadol, and Loratadine. He stated he sometimes
gets sleepy, has a dry mouth, and an aggravation of his
hyperhydrosis as side effects of the medications. Conrey
indicated he goes for emergency care when unable to stabilize
his blood sugar by eating. He stated he allows himself 1-2
hours to try and stabilize his blood sugar before going to
the hospital. Conrey testified he sought emergency care 1-2
times a year, and that he “is fighting this [diabetes]
every day.” (Tr. 29).
As for
daily activities, Conrey typically walks next door and visits
his dad. Conrey stated he lives alone and prepares many of
his meals, does laundry, mops and sweeps in “spurts,
” and grocery shops once a month. (Tr. 22). He
testified that he rode a motorcycle 3-4 days before the
hearing, hunted in the last year, and fished from a boat
three weeks before the hearing. (Tr. 14-30).
Beth
Clem (“Clem”), a vocational expert, also
testified. The ALJ asked Clem to assume a hypothetical worker
of Conrey's age and background, with the ability to do
sedentary work with the following restrictions: an option to
sit/stand such that the worker would be standing and walking
no more that 10-15 minutes at a time; could sit for intervals
of up to 30 minutes at a time; avoid exposure to excessive
airborne irritants, dust, fumes, and heat; able to
understand, remember, and carry out simple job instructions,
able to make decisions or judgments in simple work-related
situations, able to respond appropriately with co-workers and
supervisors, and able to respond appropriately to minor
changes in the usual work routine; and limited in sensation
in the fingertips such that the worker could not discern an
object by feeling.[1] Given those parameters, Clem stated such a
hypothetical worker could not perform Conrey's past
relevant work but could perform the jobs of machine tender
and surveillance monitor. Clem noted that the DOT does not
address the sit/stand option, “so my testimony in
regards to that part of the hypothetical comes from job
shadowing of these jobs.” (Tr. 32). Clem agreed that a
worker who was unable to sustain attention, concentration, or
an acceptable work pace, or a worker absent more than two
days each month would not be able to perform the jobs she
cited. Both the jobs mentioned by Clem were unskilled,
sedentary jobs with an SVP[2] of 2. (Tr. 30-33).
The
ALJ's Decision:
In his
April 2, 2018, decision, the ALJ found Conrey had the
following severe impairments: type 1 diabetes mellitus;
peripheral neuropathy; COPD; asthma; hypertension;
unspecified depressive disorder; and unspecified anxiety
disorder. The ALJ considered the impairments of hyponatremia,
muscle spasms, severe dehydration, urinary obstruction,
recurrent dislocation of his right shoulder, high
cholesterol, hyperhidrosis, and left hip and leg problems,
finding these alleged impairments were non severe. The ALJ
concluded Conrey's impairments did not meet a listed
impairment, explicitly noting he considered Listings 2.00,
11.00, 12.04 and 12.06.
The ALJ
determined Conrey had the RFC to perform sedentary work with
restrictions which mirrored those posed by the ALJ to Clem in
the hypothetical question. In reaching his RFC conclusion,
the ALJ considered Conrey's subjective statements,
finding they were “not credible to the extent they are
inconsistent” with the ALJ's RFC determination.
(Tr. 74). The ALJ addressed the medical evidence during the
relevant period, as well as medical records pre-dating the
period, thoroughly detailing the medical records from 2012
forward. During the relevant period, the ALJ addressed the
treatment records from the following sources: Family
Physician of Jonesboro Clinic; Christopher Dow, a licensed
psychological examiner at Mid-South Health Systems; emergency
room records from St. Bernard's Regional Medical Center,
including a neurodiagnostics report from Dr. Nicholas W.
Guinn (“Guinn”); Dr. Kevin Ganong
(“Ganong”), a treating physician since April 2015
at NEA Baptist Clinic; Dr. Brandon Byrd (“Byrd”)
at Dickson Orthopedics; Dr. Dhivya Sugumar
(“Sugumar”), another physician at NEA Baptist
Clinic; Dr. Christopher W. Rowlett (“Rowlett”), a
podiatrist at NEA Baptist Clinic;[3] and Dr. Yuanyuan Long
(“Long”), a neurologist at NEA Baptist Clinic.
The ALJ also addressed lab results, x-rays, and MRI findings.
The ALJ ultimately found the objective medical findings
“fail to provide strong support for the claimant's
allegations of disabling symptoms and limitations.”
(Tr. 81). The ALJ assessed Conrey's daily activities as
“not indicative of an individual who is completely
unable to work.” (Tr. 80). Finally, the ALJ commented
on Conrey's work history, which reflected he “only
worked sporadically prior to the alleged disability onset
date, which raises a question as to whether the
claimant's continuing unemployment is actually due to
medical impairments.” (Tr. 80).
In
concluding his analysis, the ALJ determined Conrey could not
perform his past relevant work. However, relying upon
Clem's testimony, the ALJ held that Conrey was able to
perform other jobs in the national economy, such as the jobs
of machine tender and surveillance monitor. Therefore, he
found Conrey not disabled. (Tr. 67-86).
Error
in failing to credit Rowlett's opinion on limitations in
fingering and handling or, in the alternative, failing to
develop the record on his ability to finger and
handle.
Rowlett
examined Conrey one time, on June 6, 2017. Conrey presented
as a new patient with his chief complaint muscle contractions
in both feet. Rowlett's physical exam showed Conrey to
have “near constant fasciculation[4] of his toes and
feet.” (Tr. 1265). Rowlett also recorded vascular
issues with Conrey's feet, and scaling around the plantar
surfaces of the foot. Rowlett diagnosed Conrey with diabetic
polyneuropathy associated with type 1 diabetes mellitus, type
1 diabetes mellitus not at goal, hereditary and idiopathic
peripheral neuropathy, tinea pedis of both feet, and
abnormality of gait. The treatment plan going forward
included a prescription for lotrisone and a neurology
consult. Rowlett noted Conrey was “having trouble
controlling the movement of his body which is now interfering
with his walking.” (Tr. 1266). Conrey was to return to
the clinic in six months. (Tr. 1264-1266).
On the
same day of the examination, Rowlett executed a Medical
Source Statement - Physical, indicating Conrey had the
following limitations: lift and carry less that 10 pounds
occasionally; lift and carry less than 10 pounds frequently,
stand and walk less than two hours a day, with a maximum of
standing/walking 30 minutes at a time; no limitation on
ability to sit; unable to reach in all directions; unable to
finger; able to handle for 1/3 of a workday; never climb,
balance, stoop, kneel, crouch, or bend; would need frequent
and longer than normal breaks, and would need the opportunity
to shift at will from sitting or standing/walking;
medications could cause a decreased ability to concentrate
and persist, requiring him to be redirected to the task at
hand very frequently; avoid all exposure to extreme cold and
high humidity; avoid moderate exposure to extreme heat and
sunlight; and avoid concentrated exposure to fumes, odors,
dust, gas, perfumes, soldering fluxes, solvents/cleaners, and
chemicals. Rowlett indicated Conrey's impairments would
result in absence from work about 3 days each month.
“Uncontrolled diabetes” was listed as the
objective medical finding which supported the limitations
cited by Rowlett. (Tr. 1258).
Conrey
contends the ALJ erred in failing to credit Rowlett's
opinion, contained in the Medical Source Statement - Physical
checklist, concerning limitations in his ability to finger
and handle. Initially, the parties are at odds over whether
Rowlett is a treating physician. This is significant since a
treating physician's medical opinions are given
controlling weight if they are well-supported by medically
acceptable clinical and laboratory diagnostic techniques and
are not inconsistent with the other substantial evidence.
See Choate v. Barnhart, 457 F.3d 865 (8th
Cir. 2006). The ALJ did not deem Rowlett to be a treating
physician, stressing the sole visit by Conrey.
The
Court disagrees with this conclusion. The fact that Rowlett
examined Conrey one time does not make him less than a
treating physician. Rowlett was one of several physicians at
NEA Baptist Clinic who treated Conrey, and the Court views
him as a treating physician. Even so, the ALJ's error in
failing to deem Rowlett a treating physician was harmless.
Rowlett's opinion was properly discounted because it
varied from the findings in Rowlett's own treatment
notes. Gates v. Commissioner, Social Security
Administration, 721 Fed.Appx. 575 (May 14, 2018). Conrey
was seen by Rowlett for foot problems, and the treatment
notes focus almost exclusively on foot impairments. As a
result, the opinions expressed in the Medical Source
Statement - Physical do not correspond with Rowlett's
medical findings. Further, other medical evidence of record
is at odds with Rowlett's opinion that Conrey was unable
to finger and able to handle for 1/3 of a workday. For
example, Byrd saw Conrey in May 2017 and diagnosed him with
bilateral hand peripheral neuropathy. Byrd specifically found
full range of motion and strength in Conrey's hand, and
noted “most of his sensation loss is in the distal
phalanx of his fingers with no particular nerve
pattern.” (Tr. 1211). Byrd's plan was for
conservative treatment with wrist splints, and Conrey was to
contact Byrd is he had continuing pain or problems. Byrd
ordered wrist x-rays and reported “no acute findings
and no chronic findings” and “overall normal
x-rays.” (Tr. 1209). Finally, no fingering or handling
deficits were noted when Conrey received emergency room care
for his diabetes in August 2017. His ...