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Herring v. Colvin

United States District Court, W.D. Missouri, Central Division

April 30, 2015

PERRY L. HERRING, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


NANETTE K. LAUGHREY, District Judge.

Plaintiff Perry L. Herring appeals the Commissioner of Social Security's final decision denying his application for disability insurance benefits and supplemental security income. The decision is affirmed.

I. Background

Herring was born in 1961, graduated from high school, and last worked in construction. He also worked as a commercial service technician and casino manager. He alleges disability beginning October 1, 2010, the date he reportedly stopped working due to medical conditions.

A. Medical history

Herring began having seizures in 2009 and was prescribed medication. In June 2010, after not having had a seizure for six months, he saw his neurologist, Manjamalai Sivaraman, M.D., asking to return to his construction work. The doctor permitted it, so long as Herring remained on the ground floor of the job site. Herring reported a number of seizures and a black out to neurologist Rezwan Islam, M.D., and to Dr. Sivaraman from October through December 2010. His medications were adjusted. In December 2010, Dr. Sivaraman instructed Herring not to drive or operate machines.

A January 2011 EEG revealed abnormal results, supporting a diagnosis of "partial epilepsy." [Tr. 268.] In March 2011, Herring complained to Dr. Sivaraman of some short-term memory loss. An MRI showed evidence of a small arachnoid cyst.

Herring saw Dr. Sivaraman in January 2012, reporting two seizures since his March 2011 visit. The doctor instructed Herring not to drive or operate machinery. Herring saw Dr. Islam in August 2012, reporting having had a seizure a couple of days earlier. Herring saw neurologist David McLaren, M.D., in October 2012. Dr. McLaren noted Herring was having nocturnal seizures. Herring saw Dr. McLaren again in November 2012. Herring did not report any new seizures. Dr. McLaren's notes for the visit indicate there was no observable decrease in ability to concentrate and that Herring's memory was not impaired. Results of an EEG performed in November 2012 were normal.

B. Treating physician's opinion, and other opinion evidence

Dr. Islam, one of Herring's neurologists, provided a mental capacity assessment in July 2011. Dr. Islam opined that Herring has marked limitations in ability to remember locations and work-like procedures; moderate limitations in ability to understand and remember very short and simple instructions and detailed instructions; moderate to extreme limitations in ability to sustain concentration and persistence; slight to moderate limitations in social interaction; and slight to marked limitations in ability to adapt. [Tr. 355-357.] Dr. Islam opined that Herring's seizures cause "extreme" memory loss and impaired concentration, and that Herring has periods of depression that may affect his ability to interact with co-workers. [Tr. 355-356.]

Dr. Islam also filled out a seizure questionnaire. The doctor stated Herring suffers from complex generalized seizures that occur about once a month, lasting five to seven minutes and requiring six to eight hours of recovery time. The doctor opined that Herring's seizures render him unable to perform even simple tasks alone. He opined Herring would have multiple limitations that would affect his ability to work including inability to focus, memory loss, and seizures. [Tr. 673-76.]

In August 2012, Dr. Islam provided a written statement on Herring's behalf, opining that due to Herring's medical conditions, including seizure disorder and depression, it would be in his best interest to have a caregiver or companion to help him with his medications, personal care, and activities of daily living.

Thomas Spencer, Psy.D., performed a consultative examination in September 2011 and reviewed Herring's medical records. Herring reported having seizures every few months. The mental status exam yielded largely normal results other than questionable judgment and insight, although Dr. Spencer noted Herring was questionably cooperative. Dr. Spencer diagnosed adjustment disorder with depression and anxiety, and assigned a global assessment of functioning (GAF) score of 60-65, consistent with moderate to mild symptoms. Dr. Spencer opined that Herring has the ability to understand and remember simple to moderately complex instructions; to engage in and persist with simple to moderately complex tasks; and is moderately impaired in his ability to interact socially and adapt to change in the workplace. [Tr. 365-69.] The ALJ gave the opinion partial weight, finding Herring more limited in memory than indicated by Dr. Spencer. [Tr. 22.]

Michael Stacy, Ph.D., reviewed Herring's record in October 2011 at the request of the state agency. Dr. Stacy opined Herring has moderate limitations on daily activities and concentration; persistence or pace; has mild restrictions on daily living; and has had one or two episodes of decompensation. Dr. Stacy concluded Herring could understand, remember, and carry out simple to moderately complex instructions and make commensurate work related decisions; relate acceptably to others in a setting with limited social demands; and adapt to most changes common in normal ...

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