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Conrey v. Berryhill

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

August 8, 2019

NANCY A. BERRYHILL, Commissioner, Social Security Administration DEFENDANT


         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 ...

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