Fraley v. Berryhill

Filing 24

OPINION MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED. A separate Judgment in accordance with this Opinion, Memorandum and Order is entered this same dated. Signed by District Judge Henry Edward Autrey on 3/22/19. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
DAVID U. FRALEY,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

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Case No. 2:18CV12 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court for judicial review of the final decision of the
Commissioner of Social Security finding that Plaintiff is not disabled and thus not
entitled to disability insurance benefits or supplemental security income under
Title II, 42 U.S.C. §§ 401-434, and Title XVI, 42 U.S.C. § 1381-1385,
respectively. For the reasons set forth below the decision of the Commissioner is
affirmed.
Background and Procedural History
Plaintiff filed his applications for disability insurance benefits under Title II,
and for SSI under Title XVI, on April 15, 2015. Plaintiff was born in 1980,
reported an eighth grade education, and alleged disability beginning April 2, 2015.
In his Disability Report, Plaintiff alleged disability due to seizures. Plaintiff’s
applications were denied initially. Following an administrative hearing on

November 17, 2016, Plaintiff’s claims were denied in a written opinion by an ALJ,
dated March 22, 2017. On December 28, 2017, the Appeals Council of the Social
Security Administration denied Plaintiff’s request for review. Thus, the decision
of the ALJ stands as the final decision of the Commissioner.
The ALJ’s Decision
The ALJ found that Plaintiff met the insured status requirements of the
Social Security Act through December 31, 2019. She found that Plaintiff had not
engaged in substantial gainful activity since the alleged onset date of April 2, 2015.
The ALJ found that Plaintiff had severe impairments of seizure disorder,
degenerative disc disease with lumbar radiculopathy, peripheral neuropathy,
depression, and anxiety. The ALJ did not find Plaintiff had an impairment or
combination of impairments listed in or medically equal to one contained in 20
C.F.R. part 404, subpart P, appendix 1. In making this determination, the ALJ
considered Plaintiff’s seizure condition under the requirements of Listing 11.02,
and Plaintiff’s mental impairments under the requirements of Listings 12.04 and
12.06. In each case, the ALJ found that the requirements were not met.
The ALJ found that Plaintiff retained the residual functional capacity (RFC)
to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b).
Plaintiff can never climb ladders, ropes, or scaffolds, but can no more than
occasionally climb stairs and ramps. He must avoid all exposure to work hazards
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such as unprotected heights and being around dangerous moving machinery.
Plaintiff cannot drive as a primary job function. He must avoid being near fires or
bodies of water (including bathing in the tub). Plaintiff can tolerate occasional
interaction with coworkers and supervisors. He cannot tolerate any contact with
the general public or any work completely alone. The ALJ concluded that
Plaintiff’s impairments would not preclude him from performing work that exists
in significant numbers in the national economy, those jobs including the light and
unskilled jobs of electrical assembler, inspector/hand packager, and small parts
assembler.
With respect to his seizure disorder, the ALJ found that Plaintiff’s subjective
complaints were out of proportion to the objective medical evidence, and that
Plaintiff’s reported symptoms were not consistent with his willingness to follow
his doctors’ recommendations. For example, the ALJ noted that, despite his
alleged seizure risk and concerns of injury during a seizure, Plaintiff admitted to
chopping wood. He admitted to going fishing at the creek and going to parks, even
though his doctors advised him to avoid bodies of water. Plaintiff also admitted to
drinking alcohol even though he was advised by doctors that doing so lowered his
seizure threshold.
Standard of Review

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The standard of review here is limited to a determination of whether the
decision is supported by substantial evidence on the record as a whole. See Milam
v. Colvin, 794 F.3d 978, 983 (8th Cir. 2015). Substantial evidence is less than
preponderance, but enough that a reasonable mind might accept as adequate to
support the Commissioner’s conclusion. See id.
The Court must consider evidence that both supports and detracts from the
Commissioner’s decision but cannot reverse the decision because substantial
evidence also exists in the record that would have supported a contrary outcome, or
because it would have decided the case differently. See Andrews v. Colvin, 791
F.3d 923, 928 (8th Cir. 2015). If the Court finds that the evidence supports two
inconsistent positions and one of those positions represents the Commissioner’s
findings, the Court must affirm the Commissioner’s decision. Wright v. Colvin,
789 F.3d 847, 852 (8th Cir. 2015). The Eighth Circuit has stated that “[w]e defer
heavily to the findings and conclusions of the Social Security Administration.”
Id. (quoting Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir. 2010)).
Standard for Determining Disability
The Social Security Act defines as disabled a person who is “unable to
engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than twelve
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months.” 42 U.S.C. § 1382c(a)(3)(A); see also Hurd v. Astrue, 621 F.3d 734, 738
(8th Cir.2010). The impairment must be “of such severity that [the claimant] is not
only unable to do his previous work but cannot, considering his age, education, and
work experience, engage in any other kind of substantial gainful work which exists
in the national economy, regardless of whether such work exists in the immediate
area in which he lives, or whether a specific job vacancy exists for him, or whether
he would be hired if he applied for work.” 42 U.S.C. § 1382c(a)(3)(B).
A five-step regulatory framework is used to determine whether an individual
claimant qualifies for disability benefits. 20 C.F.R. §§ 404.1520(a), 416.920(a);
see also McCoy v. Astrue, 648 F.3d 605, 611 (8th Cir.2011) (discussing the fivestep process). At Step One, the ALJ determines whether the claimant is currently
engaging in “substantial gainful activity”; if so, then he is not disabled. 20 C.F.R.
§§ 404.1520(a)(4)(I), 416.920(a)(4)(I); McCoy, 648 F.3d at 611.
At Step Two, the ALJ determines whether the claimant has a severe
impairment, which is “any impairment or combination of impairments which
significantly limits [the claimant's] physical or mental ability to do basic work
activities”; if the claimant does not have a severe impairment, he is not disabled.
20 C.F.R. §§ 404.1520(a) (4)(ii), 404.1520(c), 416.920(a)(4)(ii), 416.920(c);
McCoy, 648 F.3d at 611.

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At Step Three, the ALJ evaluates whether the claimant's impairment meets
or equals one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix
1 (the “listings”). 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the
claimant has such an impairment, the Commissioner will find the claimant
disabled; if not, the ALJ proceeds with the rest of the five-step process. 20 C.F.R.
§§ 404.1520(d), 416.920(d); McCoy, 648 F.3d at 611.
Prior to Step Four, the ALJ must assess the claimant's “residual functional
capacity” (“RFC”), which is “the most a claimant can do despite [his] limitations.”
Moore v. Astrue, 572 F.3d 520, 523 (8th Cir.2009) (citing 20 C.F.R. § 404.1545 (a)
(1)); see also 20 C.F.R. §§ 404.1520(e), 416.920(e). At Step Four, the ALJ
determines whether the claimant can return to his past relevant work, by comparing
the claimant's RFC with the physical and mental demands of the claimant's past
relevant work. 20 C.F.R. §§ 404.1520(a) (4) (iv), 404.1520(f), 416.920(a) (4) (iv),
416.920(f); McCoy, 648 F.3d at 611. If the claimant can perform his past relevant
work, he is not disabled; if the claimant cannot, the analysis proceeds to the next
step. Id.
At Step Five, the ALJ considers the claimant's RFC, age, education, and
work experience to determine whether the claimant can make an adjustment to
other work in the national economy; if the claimant cannot make an adjustment to

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other work, the claimant will be found disabled. 20 C.F.R. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v); McCoy, 648 F.3d at 611.
Issue
The sole issue raised by Plaintiff is whether the ALJ improperly found that
Plaintiff did not meet the requirements of Listing 11.02 A.
Did the ALJ err in finding that Plaintiff did not meet listing 11.02 A?
“[T]he listings were designed to operate as a presumption of disability that
makes further inquiry unnecessary. That is, if an adult is not actually working and
his impairment matches or is equivalent to a listed impairment, he is presumed
unable to work and is awarded benefits without a determination whether he
actually can perform his own prior work or other work.” Sullivan v. Zebley, 493
U.S. 521, 532 (1990). “If the claimant wins at the third step (a listed impairment),
[ ]he must be held disabled, and the case is over.” Jones v. Barnhart, 335 F.3d
697, 699 (8th Cir. 2003). But “[m]erely being diagnosed with a condition named
in a listing and meeting some of the criteria will not qualify a claimant for
presumptive disability under the listing. ‘An impairment that manifests only some
of [the listing] criteria, no matter how severely, does not qualify.’ ” McCoy v.
Astrue, 648 F.3d 605, 611–12 (8th Cir. 2011) (quoting Zebley, 493 U.S. at 530).
The burden is on the claimant to demonstrate that his impairment matches all the

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specified criteria of a listing. McDade v. Astrue, 720 F.3d 994, 1001 (8th Cir.
2013).
Plaintiff claims that the ALJ erred in finding that Plaintiff’s condition did
not meet the requirements of Listing 11.02 A regarding epilepsy. Listing 11.02 A
states:
11.02 Epilepsy, documented by a detailed description of a typical
seizure and characterized by A, B, C, or D:
A. Generalized tonic-clonic seizures (see 11.00H1a), occurring at
least once a month for at least 3 consecutive months (see 11.00H4)
despite adherence to prescribed treatment (see 11.00C).
Section 11.00 C states:
C. How do we consider adherence to prescribed treatment in
neurological disorders?
In 11.02 (Epilepsy) . . . we require that limitations from these
neurological disorders exist despite adherence to prescribed treatment.
“Despite adherence to prescribed treatment” means that you have
taken medication(s) or followed other treatment procedures for your
neurological disorder(s) as prescribed by a physician for three
consecutive months but your impairment continues to meet the other
listing requirements despite this treatment. . . .
At the administrative hearing, Plaintiff testified that he had two to three
seizures a month, or more. Dr. Kinkade, Plaintiff’s treating physician, reported
that Plaintiff suffered from frequently occurring tonic-clonic seizures, and the ALJ
afforded great weight to Dr. Kinkade’s assessment. However, the ALJ also noted
evidence that Plaintiff was not adhering to his prescribed treatment.

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Between April 2, 2015 and November 21, 2016, Plaintiff was visibly
intoxicated, tested positive for alcohol, or reported that he had been drinking at six
ER visits following seizures. Plaintiff admitted at the hearing that he had at least
one doctor tell him to stop drinking any alcohol, but that he had not quit
completely. Plaintiff claimed that his physician Dr. Batchu told him that “a couple
beers a day wasn’t going to hurt me.”
Plaintiff’s medical records show that Plaintiff was advised by multiple
treating physicians on at least five occasions that alcohol lowered his seizure
threshold. Twice, on April 16, 2015 and July 25, 2016, Plaintiff was advised to
quit drinking completely. While Plaintiff reported that he was attempting
compliance near the beginning of his alleged onset date, the record demonstrates
that he never fully stopped drinking. Two of the six times that Plaintiff arrived at
the ER under the influence of alcohol and complaining of seizures, his treating
physicians discussed the negative effect of alcohol on his seizure disorder.
Nevertheless, Plaintiff has repeatedly asserted to his treating physicians that
alcohol does not cause or affect his seizures. Dr. Batchu noted Plaintiff’s
resistance to alcohol abstinence when he tried to discuss substance use with
Plaintiff and his wife, who both “only defended his use of marijuana and ETOH
[alcohol].”

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Moreover, Plaintiff’s testimony with respect to his substance use was
inconsistent with the objective medical records. Plaintiff testified, for instance,
that he had not used cannabinoids for six to eight months prior to the hearing, and
that he “might have a beer after dinner or a beer before dinner.” The medical
records show that less than four months prior to the hearing, Plaintiff arrived at the
ER where medical staff believed that he had been using marijuana and alcohol.
During that same visit, Plaintiff defended his use of marijuana, thereby admitting
to the use he later denied in his hearing testimony.
The ALJ’s findings were supported by the medical evidence in the record,
and there was substantial evidence for her to determine that Plaintiff was not in
strict adherence to his prescribed treatment for at least three consecutive months.
Conclusion
Based upon the foregoing, the ALJ’s decision is based upon substantial
evidence in the record.
Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner is
AFFIRMED.
A separate Judgment in accordance with this Opinion, Memorandum and

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Order is entered this same dated.
Dated this 22nd day of March, 2019.

___________________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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