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Robinson v. Berryhill

United States District Court, E.D. Missouri, Eastern Division

March 13, 2019

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         This action is before the Court for judicial review of the final decision of the Commissioner of Social Security finding that Plaintiff Gregory Robinson is not disabled and thus not entitled to disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401434. For the reasons set forth below, Commissioner's decision is affirmed.


         The Court adopts the facts set forth in Plaintiff's Statement of Undisputed Material Facts (ECF No. 19) and Defendant's Statement of Additional Facts (ECF No. 24-2), which Plaintiff has not opposed. Together, these statements provide a fair description of the record before the Court. Specific facts will be discussed as needed to address the parties' arguments.

         Plaintiff, born June 23, 1957, was most recently employed as a janitor until February 2011. Plaintiff received unemployment benefits and was actively seeking work until May or early June of 2012, when he suffered a stroke. Plaintiff first applied for disability benefits June 14, 2012. That application was denied January 30, 2014. Plaintiff filed the present application April 17, 2014, alleging a disability beginning January 31, 2014, [1] due to kidney damage, seizures, chronic fatigue, hepatitis C, and high blood pressure. On June 4, 2014, Plaintiff's application was denied at the administrative level, and he thereafter requested a hearing before an Administrative Law Judge (ALJ). A hearing was held January 26, 2016. The ALJ heard testimony by Plaintiff, who was represented by counsel, and a vocational expert (VE). Supplemental hearings were held July 8 and August 31, 2016, adding further vocational testimony.

         In short, Plaintiff has experienced seizures and memory loss since his stroke in 2012. Plaintiff was prescribed Keppra to control his seizures, but he continues to have them, particularly when non-compliant with his medication and lacking adequate sleep. Additionally, in 2014, a CT of the spine revealed a compression fracture from T4 to T6. Plaintiff also has hepatitis C, has high blood pressure, and smokes cigarettes. Plaintiff submitted a medical source statement from his nurse practitioner, Bryan Price, who had seen Plaintiff regularly since 2012. NP Price opined that Plaintiff was capable of low-stress work with the following limitations: sitting for two hours and standing for 30 minutes at a time; sitting for four hours and walking/standing for two hours in an 8-hour work day; one to two unscheduled breaks of 10-13 minutes; lifting 10 pounds frequently and 20 pounds occasionally; off-task 15% of the work day; avoid extreme temperatures and concentrated odors/fumes.

         Evidentiary Hearing and ALJ's Decision

         At the administrative hearing, Plaintiff testified that he could not drive due to his seizures and he had trouble remembering things due to his stroke, so he required written reminders and instructions. By decision dated September 14, 2016, the ALJ determined that Plaintiff had the severe impairments of hepatitis C, a history of thoracic compression fracture, seizures, and cerebral hemispheric dysfunction. The ALJ further determined that Plaintiff had the residual functional capacity (RFC) to perform medium work, as defined in 20 C.F.R. 404.1567(c), except that Plaintiff: (1) was unable to crawl or to climb ladders, ropes, and scaffolds; (2) must avoid exposure to unprotected heights, moving mechanical parts, and hazardous chemicals; and (3) was limited to occupations involving simple, routine tasks.

         In support of this determination, the ALJ noted the following from Plaintiff's medical records. In February 2014, Plaintiff had a neurological consult that did not necessitate follow-up. In May 2014, Plaintiff was hospitalized after an unexplained trauma in his apartment, resulting in spinal fractures at ¶ 4-T6. Plaintiff was non-compliant with treatment and was discharged in stable condition. In June 2014, Plaintiff had a visit with his primary care physician and reported “doing well” and having “no complaints.” Plaintiff declined assistance to quit smoking. In October 2014, it was noted that Plaintiff had stopped taking his blood-pressure medication. In December 2014, Plaintiff's hepatitis C was symptomatic.

         In January 2015, Plaintiff had another seizure. It was noted that Plaintiff was non-compliant with medications for seizures and hypertension, and Plaintiff was not sleeping. In February 2015, Plaintiff saw a neurologist, gastroenterologist, primary care nurse practitioner, and psychiatrist. The neurology examination yielded normal results. Plaintiff was prescribed a 12-week course of medication for his hepatitis C. In March 2015, Plaintiff saw an ophthalmologist and refused glasses. Also that month, Plaintiff's neurology examination was normal. Plaintiff was instructed to take his medication, avoid sleep deprivation, and quit smoking. In early July 2015, Plaintiff had finished his 12-week hepatitis therapy. The following week, Plaintiff had another seizure after a period of sleep deprivation. In October 2015, Plaintiff visited the gastroenterologist and reported feeling stronger and healthier than he had in years. In November 2015, Plaintiff underwent successful radiation therapy for arteriovenous malformations. In early December 2015, Plaintiff's neurological examination was normal and he was clinically stable and performing well. Plaintiff had seizures later in December 2015 and January 2016. In February 2016, Plaintiff's primary care and neurology exams were normal. In March 2016, Plaintiff's records continued to reflect inconsistent adherence to seizure medication and sleep deprivation, but a neurological examination was normal. In June 2016, Plaintiff's neurological and physical examinations were normal and his blood pressure was not significantly elevated. Plaintiff failed to submit a function report despite prompting by the field office.

         Viewing the whole record, the ALJ observed that Plaintiff “has not generally received the type of medical treatment [that] one would expect for a totally disabled individual.” Plaintiff's hepatitis was controlled. Plaintiff on numerous occasions did not specify any particular complaints. Notably, the ALJ observed that Plaintiff's “medical records are replete with instances of non-compliance” regarding his appointments, medications, and treatment, particularly with respect to his seizures and hypertension. The ALJ found that Plaintiff's failure to follow medical advice indicated that “he is not motivated fully to return to substantial gainful activity and is not accurately representing his level of functioning.”

         The ALJ gave little weight to NP Price's opinion because (1) a nurse practitioner is not considered an acceptable medical source and (2) NP Price's opinion was inconsistent with the medical evidence in the record. For example, NP Price identified no physical symptoms but issued an opinion imposing significant physical limitations, evidently relying heavily on Plaintiff's subjective complaints despite myriad reasons to question Plaintiff's credibility. The ALJ reasoned that the limitations designated in NP Price's opinion were not supported by any clinical or laboratory abnormalities or other objective information contained in the medical records. As such, the ALJ concluded that Plaintiff's medium RFC was supported by the absence of treatment suggesting total disability, successful available treatments for Plaintiff's existing symptoms, Plaintiff's non-compliance with available treatments, and “relatively benign objective findings in the record.”

         Finally, the ALJ found that Plaintiff could perform certain jobs listed in the Dictionary of Occupational Titles (DOT), such as dishwasher, linen room attendant, and laundry worker, which the VE testified a hypothetical person with Plaintiff's RFC and vocational factors (age, education, work experience) could perform and that were available in significant numbers in the national economy. Accordingly, the ALJ found that Plaintiff was not disabled as defined under the Social Security Act.

         Plaintiff filed a timely request for review by the Appeals Council, which denied his request in September 2017. Thus Plaintiff has exhausted all administrative remedies, and the ALJ's decision stands as the final agency action now under review. Plaintiff asserts that the ALJ erred by: (1) failing to give sufficient weight to NP Price's opinion, and (2) relying on vocational expert testimony that was inconsistent with DOT classifications.


         Statutory ...

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