Berry v. Social Security Administration, No. 3:2017cv00245 - Document 13 (E.D. Ark. 2018)
Court Description: MEMORANDUM OPINION AND ORDER affirming the decision of the Commissioner. Berry's complaint is dismissed, all requested relief is denied, and judgment will be entered for the Commissioner. Signed by Magistrate Judge Patricia S. Harris on 7/11/2018. (jak)
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Berry v. Social Security Administration Doc. 13 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS JONESBORO DIVISION PATRICIA BERRY PLAINTIFF v. NO. 3:17-cv-00245 PSH NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration DEFENDANT MEMORANDUM OPINION AND ORDER Plaint iff Pat ricia Berry (“ Berry” ) began t his case by filing a complaint pursuant t o 42 U.S.C. 405(g). In t he complaint , she challenged t he final decision of t he Act ing Commissioner of t he Social Securit y Administ rat ion (“ Commissioner” ), a decision based upon t he findings of an Administ rat ive Law Judge (“ ALJ” ). Berry maint ains t hat t he ALJ’ s findings are not support ed by subst ant ial evidence on t he record as a whole. 1 Berry so maint ains for t wo reasons. First , she maint ains t hat her residual funct ional capacit y was erroneously assessed because t he ALJ improperly discount ed t he opinions of Berry’ s t reat ing nurse pract it ioner. Second, Berry maint ains t hat t he ALJ failed t o include a limit at ion for concent rat ion, persist ence, or pace in a hypot het ical quest ion t he ALJ posed t o a vocat ional expert , t he answer t o which t he ALJ relied upon in finding t hat Berry is not disabled. The uestio fo the Cou t is hethe the ALJ’s fi di gs a e suppo ted su sta tial e ide e o the e o d as a hole. “u sta tial e ide e ea s less tha a p epo de a e ut e ough that a easo a le pe so ould fi d it ade uate to suppo t the de isio . “ee Boett he . Ast ue, F. d , th Ci . . Dockets.Justia.com Berry was born on November 10, 1962, and was fift y-t wo years old on April 5, 2015, i.e., t he day she allegedly became disabled. She filed her applicat ions for disabilit y insurance benefit s and supplement al securit y income payment s on May 13, 2015, and alleged t hat she became disabled as a result of diabet es mellit us (“ diabet es” ), obesit y, heart condit ions, hypert ension, acid reflux, high cholest erol, anxiet y, depression, memory problems, and art hrit is. Berry ably summarized t he evidence in t he record, and t he Commissioner did not challenge t he summary. It will not be reproduced, except t o not e several mat t ers germane t o t he issues raised in t he part ies’ briefs. The record reflect s t hat in January of 2012, Berry underwent t riple bypass surgery. See Transcript at 659. She t hen received approximat ely t hree mont hs of rehabilit at ion. See Transcript at 449-478. At t he conclusion of t he rehabilit at ion period, Berry saw Dr. Jack Havdala, M.D., (“ Havdala” ), t he surgeon who performed t he bypass surgery. See Transcript at 338-341. Berry report ed t hat she was doing well. Her blood pressure was 111/ 83. Havdala not ed t hat Berry’ s incision was “ nearly healed,” and she could ret urn t o work in one mont h. During 2012, Berry saw Dr. Barry Hendrix, M.D., (“ Hendrix” ) on what appear t o have been t hree occasions. See Transcript at 317-319 (04/ 17/ 2012), 313-316 (08/ 02/ 2012), 310-312 (11/ 12/ 2012). His progress not es reflect t hat he saw her primarily for diabet es, alt hough he also saw her for art eriosclerot ic cardiovascular disease, “ dysmet abolic syndrome X,” and hypert ension. Hendrix observed t hat Berry st ood sixt y-t wo inches t all and t ypically weighed 250 pounds. She appeared t o be doing well and had few complaint s. Her medicat ions included Percocet and Zoloft . Berry sought emergency room care on July 21, 2012, complaining of chest wall pain and muscle st rain. See Transcript at 431-448. A chest x-ray was performed, and t he result s revealed mild cardiomegaly, st able, and no evidence of air space disease. A second chest x-ray was performed approximat ely seven mont hs lat er, and t he result s revealed no acut e infilt rat e, calcificat ion of t he aort ic arch, and minimal curvat ure of t he mid-t horacic spine. See Transcript at 430. Berry saw Havdala on February 12, 2013, for a follow-up examinat ion. See Transcript at 334-337. His progress not e reflect s t hat she had been doing well but had recent ly begun experiencing pain in her st ernum wit h mot ion and coughing. Her blood pressure was 136/ 96. He ordered a CT scan, which was performed t wo days lat er. See Transcript at 331-333. The result s revealed t hat her manubrium was not complet ely fused. Berry saw Hendrix on what appear t o have been t wo occasions in 2013. See Transcript at 306-309 (03/ 26/ 2013), 304-305 (03/ 28/ 2013). His progress not es reflect t hat she report ed no significant changes in her chronic medical condit ions. Hendrix observed t hat Berry weighed approximat ely 250 pounds, and Berry’ s blood pressure was relat ively st able. Berry sought medical care in 2013 for her complaint s of chest pain. See Transcript at 405-428 (09/ 01/ 2013), 670-678 (09/ 02/ 2013), 667-669 (09/ 06/ 2013), 658666 (09/ 16/ 2013). Alt hough t he result s of a Sept ember 1, 2013, chest x-ray revealed cardiomegaly, t he result s of a subsequent chest x-ray were negat ive. The result s of a lexiscan myocardial perfusion st udy were abnormal, and a cardiac cat het erizat ion revealed abnormalit ies. Beginning on November 7, 2013, and cont inuing t hrough May 27, 2016, Berry was seen by Sarah Hit t , APRN, (“ Hit t ” ) for impairment s t hat included chest pain, diabet es, hypert ension, headaches, obesit y, and anxiet y. See Transcript at 343-344 (11/ 07/ 2013), 358-360 (12/ 27/ 2013), 355-357 (01/ 07/ 2014), 352-354 (02/ 07/ 2014), 349-351 (02/ 27/ 2014), 345-347 (03/ 24/ 2014), 379-381 (04/ 29/ 2014), 376-378 (06/ 26/ 2014), 372-375 (09/ 11/ 2014), 368-371 (01/ 19/ 2015), 365-367 (02/ 19/ 2015), 361-364 (07/ 14/ 2015), 653-656 (10/ 06/ 2015), 649-652 (01/ 15/ 2016), 637-640 (03/ 22/ 2016), 633-636 (05/ 27/ 2016). Hit t ’ s progress not es reflect t hat Berry st ruggled wit h her weight , weighing as much as 274 pounds. Berry also had difficult y maint aining a healt hy blood pressure as it was recorded t o be as high as 164/ 106. Her physical examinat ions were nevert heless largely rout ine, and she was encouraged t o “ t ry t o walk some on a regular basis.” See Transcript at 655. Not wit hst anding her fairly rout ine physical examinat ions and t he recommendat ion t hat she t ry t o walk some, she oft ent imes complained of chest pain t hat made it difficult t o walk for any meaningful dist ance. Hit t prescribed or ot herwise cont inued Berry on medicat ions t hat included Mobic, Xanax, Met formin, Plavix, and Klonopin. Bet ween March 15, 2014, and cont inuing t hrough July 3, 2016, Berry underwent addit ional t est ing, and sought medical care, for her various impairment s. See Transcript at 389, 581-587 (03/ 15/ 2014); 324-330 (03/ 18/ 2014); 551-566 (05/ 12/ 2014); 688-689 (08/ 14/ 2014); 519-545 (09/ 30/ 2014); 487-513, 598-603 (02/ 06/ 2015-02/ 07/ 2015); 686687 (02/ 12/ 2015); (07/ 14/ 2015); 481-484, 604-613, 790-814 (09/ 22/ 2015); 828-888 (02/ 16/ 2015); 683-685 (01/ 18/ 2016); 619, 641-643, 621, 825 732-769 (01/ 25/ 2016); 628-629, 718-731 (05/ 30/ 2016); 693-717 (07/ 03/ 2016). She was seen primarily for her cont inued complaint s of chest pain, alt hough she also sought care for anxiet y. A chest x-ray performed on March 15, 2014, showed no acut e filt rat e, and t he result s of t hree EKGs during t he period were wit hin normal limit s. A diagnost ic coronary angiogram was performed on February 6, 2015, and t he diagnoses included angina. On January 25, 2016, Berry underwent cardiac cat het erizat ion, t he result s of which revealed some heart disease. A July 3, 2016, ECG was borderline. She was rout inely diagnosed wit h at ypical chest pain and prescribed pain medicat ion. On June 20, 2016, Hit t signed a Medical Source St at ement -Physical on behalf of Berry. See Transcript at 691-692. Hit t opined t hat Berry’ s impairment s give rise t o t he following work-relat ed limit at ions: 1) Berry can lift and carry less t han t en pounds occasionally; 2) she can lift and carry less t han t en pounds frequent ly; 3) she can st and and walk for about t wo hours in an eight -hour day; 4) she can sit for about five hours in an eight -hour day; 5) she requires frequent rest periods; 6) she requires t he opport unit y t o shift at will from sit t ing or st and/ walking; 7) she is unable t o finger; and 8) she must avoid all exposure t o ext reme cold, ext reme heat , high humidit y, fumes, odors, dust , gases, and perfumes. Wit h respect t o Berry’ s ment al impairment s, Hit t opined t hat Berry has a decreased abilit y t o concent rat e and persist in a j ob set t ing and needs t o be frequent ly redirect ed in order t o remain on t ask. Hit t opined t hat Berry would need t o miss about one day of work per mont h because of doct or’ s visit s. Hit t represent ed t hat her opinions were support ed by t he following obj ect ive medical findings: “ [coronary art ery disease], art hrit is, diabet es, depression, obesit y, anxiet y, and hypert ension.” See Transcript at 692. She represent ed t hat her opinions covered t he period from November 7, 2013, t o t he present . Berry’ s medical records were reviewed by st at e agency medical professionals. See Transcript at 63-72, 73-82, 85-95, 97-107. They agreed t hat Berry is capable of performing t he exert ional demands of light work wit h mild t o moderat e limit at ions caused by her ment al impairment s. Berry complet ed a series of document s in connect ion wit h her applicat ions for disabilit y insurance benefit s and supplement al securit y income payment s. See Transcript at 238-247, 251-252, 254-261, 271-277, 278-284. In t he document s, she represent ed, int er alia, t hat she has pain in her neck, chest , and back. The pain is exacerbat ed wit h exert ion. She can st and and/ or walk for about one hour before she begins t o experience pain but t ypically has no problem sit t ing for longer periods of t ime. She can at t end t o her own personal care, prepare simple meals, perform some household chores but no yardwork, is able t o drive an aut omobile, and can shop in st ores. Berry’ s hobbies include reading, sewing, and playing games on her comput er and t he int ernet . She helps care for her t wo grandchildren while her daught er works, and Berry spends t ime wit h ot hers. Berry has difficult y remembering, concent rat ing, and following spoken inst ruct ions. Berry complet ed a work hist ory report in connect ion wit h her applicat ions. See Transcript at 263-268. The report reflect s t hat she worked in t he service indust ry as a logist ic coordinat or for t wo periods bet ween December of 2002 and March of 2013. The report also reflect s t hat she worked in t he ret ail indust ry as a sales clerk/ cashier for t wo periods bet ween August of 2013 and April of 2015, but t he work was not subst ant ial gainful act ivit y. A summary of her FICA earnings during t hose periods reflect good earnings, at least t hrough 2011. See Transcript at 219. Berry t est ified during t he administ rat ive hearing. See Transcript at 39-54. She was fift y-t hree years old at t he t ime and has t he benefit of an associat e degree. She st ands sixt y-t wo inches t all and weighs 262 pounds. She underwent t riple bypass surgery in January of 2012, aft er which she at t empt ed t o work part -t ime. She was unable t o do so, t hough, because of persist ent chest pain. When asked why she cannot work, she t est ified t o t he following: A. The various pains. My chest hurt s 24/ 7, but it ’ s— when it get s— increase wit h st ress. So, if I t hink I’ m having a heart at t ack t hen it put s me int o an anxiet y at t ack. The memory loss, I’ ve been t old, is from t he surgery. That plays a big part in having t o do anyt hing very long. Q. So— and you may have j ust ment ioned t his, but st amina? I mean, j ust — A. Yes. I’ ve— ve— far, you know, even for a sit -down j ob, it could I’ as last for, you know, t hree, maybe four hours. But it ’ s my head, my anxiet y, j ust t he lit t lest t hing j ust works on me and t hen I’ ll j ust have t o t ake a break even— even at home. See Transcript at 47. Berry must alt ernat e bet ween st anding and sit t ing when performing cert ain t asks. She could handle t he sit t ing requirement s of most work, but t he st ress t hat accompanies t he work would make it impossible t o complet e t he work. She has art hrit is, j oint pain, and cramping in her ext remit ies and t akes Meloxicam for her art hrit is. Her sympt oms are aggravat ed by ext reme heat and ext reme cold, and t hey cause her t o t ire easily. The ALJ found at st ep t wo of t he sequent ial evaluat ion process t hat Berry has severe impairment s in t he form of degenerat ive j oint disease, heart h disease wit h a hist ory of t riple bypass surgery, hypert ension, morbid obesit y, diabet es, and an anxiet y disorder. The ALJ assessed Berry’ s residual f unct ional capacit y and found t he following: ... [Berry] has t he residual funct ional capacit y t o perform light work as defined in 20 CFR 404.1567(b) and 416.967(b). Specifically, [she] ret ains residual funct ional capacit y t o lift and carry 20 pounds occasionally and 10 pounds frequent ly. She can st and and/ or walk six hours in an eight hour workday; sit for six hours in an eight -hour workday; push and/ or pull 20 pounds occasionally and 10 pounds frequent ly. She can frequent ly but not const ant ly finger bilat erally. Non-exert ional, [Berry] has t he following limit at ions. She cannot climb ropes, ladders, or scaffolds; but , she can occasionally climb ramps and st airs and she can occasionally balance, st oop, kneel, crouch, or crawl. She cannot work at unprot ect ed height s, around moving machinery, or be exposed t o respirat ory irrit ant s such as humidit y, dust , fumes, odors, or ext reme changes in t emperat ure. [She] ret ains t he ment al abilit y t o perform simple, rout ine, and repet it ive t asks. She can make simple workrelat ed decisions. Int erpersonal cont act must be incident al t o t he work performed; and, t he supervision must be simple, direct , and concret e. See Transcript at 23-24. In so finding, t he ALJ gave lit t le weight t o Hit t ’ s opinions. The ALJ did so for t he following reasons: The [ALJ] acknowledges t hat Sara Hit t , APRN, has given an opinion t hat [Berry] is unable t o work. However, t he medical findings submit t ed by Ms. Hit t (and ot herwise document ed in t he record) do not support a finding t hat [Berry’ s] medical condit ion is disabling. [Hit t ] appears t o have t aken [Berry’ s] subj ect ive allegat ions at face value and wit hout considerat ion of t he ot her fact ors, which must be considered by t he [ALJ], such as t he ot her medical report s and opinions in t he case file, as well as t he necessary vocat ional fact ors. For inst ance, [Berry] complained of art hrit is in her hands and knees. Medicat ions were prescribed. However, ... Hit t not es t hat [Berry] did not t ake t he medicat ion (Gabapent in) and did not regularly t ake medicat ion for j oint pain. As well, laborat ory t est s apparent ly do not indicat e an inflammat ory disease as no diagnosis is assigned t o [Berry]. Finally, ... Hit t does not document any funct ional limit at ions. In January 2016, Dr. Duplant is not ed no complicat ions from diabet es. ... An emergency room evaluat ion in July 2016 revealed normal range of mot ion of ext remit ies and no mot or deficit s. Overall, [Berry’ s] physical exams indicat e normal range of mot ion, normal st rengt h, and no evidence of neuropat hy. Alt hough ... Hit t is not considered an “ accept able medical source” wit hin t he regulat ory definit ion ..., t he [ALJ] has considered [Hit t ’ s] opinion ... and accords it lit t le weight because it is unsupport ed by t he evidence. See Transcript at 29. The ALJ found at st ep four t hat Berry is unable t o perform her past relevant work but found at st ep five t here is ot her work Berry can perform. Berry maint ains t hat t he ALJ’ s findings are not support ed by subst ant ial evidence on t he record as a whole. It is Berry’ s cont ent ion t hat t he ALJ erred when he discount ed Hit t ’ s opinions. The ALJ must assess t he claimant ’ s residual funct ional capacit y, which is a det erminat ion of t he most she can do despit e her limit at ions. See Brown v. Barnhart , 390 F.3d 535 (8t h Cir. 2004). It is made using all of t he relevant evidence in t he record and must be support ed by some medical evidence. See Wildman v. Ast rue, 596 F.3d 959 (8t h Cir. 2010). As a part of t he assessment , t he ALJ must consider t he medical opinions in t he record. See Wagner v. Ast rue, 499 F.3d 842 (8t h Cir. 2007). A t reat ing physician’ s medical opinions are given cont rolling weight if t hey are well-support ed by medically accept able clinical and laborat ory diagnost ic t echniques and are not inconsist ent wit h t he ot her subst ant ial evidence. See Choat e v. Barnhart , 457 F.3d 865 (8t h Cir. 2006). Subst ant ial evidence on t he record as a whole support s t he reasons t he ALJ gave for discount ing Hit t ’ s opinions. First , t he ALJ could and did discount Hit t ’ s opinions because Hit t is not an “ accept able medical source.” See 20 C.F.R. 416.913(a). Hit t is an advanced pract ice regist ered nurse and, as such, is considered an “ ot her” medical source. See 20 C.F.R. 913(d). Alt hough Hit t ’ s opinions are relevant as t o t he severit y of Berry’ s impairment s and t heir impact on her abilit y t o work, Hit t ’ s opinions are not ent it led t o great weight . Second, t he ALJ could and did discount Hit t ’ s opinions because she appears t o have t aken some of Berry’ s subj ect ive allegat ions at face value. For inst ance, Hit t opined t hat Berry can st and and walk for about t wo hours in an eight -hour day. There is lit t le, if any, evidence t o support such a limit at ion, save Berry’ s self-report s. Alt hough t he Court would likely view t his case different ly had t his reason been t he only reason t he ALJ gave for discount ing Hit t ’ s opinions, t he reason is but one of t he reasons t he ALJ gave. Third, t he ALJ could and did discount Hit t ’ s opinions because she did not impose any funct ional limit at ions on Berry. It is t rue, as Berry maint ains, t hat Hit t imposed funct ional limit at ions on Berry in t he medical source st at ement . The Court underst ands t he ALJ’ s reason for discount ing Hit t ’ s opinions, t hough, as being t hat Hit t did not impose any funct ional limit at ions on Berry during t he period Hit t was t reat ing Berry. Because Hit t did not impose any funct ional limit at ions on Berry during t he period she was being t reat ed, t he ALJ could and did give Hit t ’ s opinions less weight . Last , t he ALJ could and did discount Hit t ’ s opinions because t hey are inconsist ent wit h t he record as a whole. For inst ance, Hit t ’ s opinions are inconsist ent wit h her own progress not es. Alt hough Hit t repeat edly observed t hat Berry st ruggled wit h her weight and had difficult y maint aining a healt hy blood pressure, Hit t ’ s physical examinat ions of Berry were largely rout ine and revealed not hing remarkable. When Hit t saw Berry on Oct ober 6, 2015, t hey discussed diet , exercise, and “ t he need t o make some life st yle changes and lose some weight .” See Transcript at 655. Berry was in agreement wit h t he recommendat ion and was going t o “ st art making changes and t ry t o walk some on a regular basis.” See Transcript at 655. Hit t ’ s opinions are also inconsist ent wit h t he ot her evidence in t he record. The medical evidence reflect s t hat Berry had an adequat e recovery following t riple bypass surgery. The result s of a chest x-ray performed in July of 2012 revealed mild cardiomegaly, st able, but no evidence of air space disease. The result s of a second chest x-ray performed approximat ely seven mont hs lat er revealed no acut e infilt rat e, calcificat ion of t he aort ic arch, and minimal curvat ure of t he mid-t horacic spine. A t hird chest x-ray was performed in March of 2014, and t he result s revealed no acut e filt rat e. Three EKGs were performed during t he period bet ween March of 2014 and July of 2016. The result s were wit hin normal limit s, alt hough t he result s of an ECG performed in July of 2016 were borderline. A cardiac cat het erizat ion was performed in January of 2016, and it revealed some evidence of heart disease. The non-medical evidence is equally unremarkable. Berry can at t end t o her own personal care, prepare simple meals, perform some household chores but no yardwork, is able t o drive an aut omobile, and can shop in st ores. She helps care for her t wo grandchildren while her daught er works, and Berry spends t ime wit h ot hers. Berry report ed difficult y remembering, concent rat ing, and following spoken inst ruct ions, but her hobbies include reading, sewing, and playing games on her comput er and t he int ernet . Those act ivit ies undoubt edly require some abilit y t o concent rat e and persist . The governing st andard, i.e., subst ant ial evidence on t he record as a whole, allows for t he possibilit y of drawing t wo inconsist ent conclusions. See Culbert son v. Shalala, 30 F.3d 934 (8t h Cir. 1994). The ALJ craft ed an assessment of Berry’ s residual funct ional capacit y t hat limit ed her t o light , simple/ unskilled work, and Berry has not shown how t he ALJ erred in doing so. In short , t he ALJ could find as she did. Berry offers a second reason why t he ALJ’ s decision is not support ed by subst ant ial evidence on t he record as a whole. Berry maint ains t hat t he ALJ failed t o include a limit at ion for concent rat ion, persist ence, or pace in a hypot het ical quest ion t he ALJ posed t o a vocat ional expert , t he answer t o which t he ALJ relied upon in finding t hat Berry is not disabled. Test imony from a vocat ional expert is subst ant ial evidence on t he record as a whole only when “ t he t est imony is based on a correct ly phrased hypot het ical quest ion t hat capt ures t he concret e consequences of a claimant ’ s deficiencies.” See Taylor v. Chat er, 118 F.3d 1274, 1278 (8t h Cir. 1997). The quest ion must include all of t he claimant ’ s impairment s t hat are subst ant ially support ed by t he record as a whole. See Id. If t he ALJ finds t hat t he claimant has a limit at ion in concent rat ion, persist ence, or pace, t he ALJ must include t he limit at ion in t he quest ion. See Newt on v. Chat er, 92 F.3d 688 (8t h Cir. 1996). The manner in which t he ALJ account s for t he limit at ion and incorporat es it int o t he quest ion, t hough, can be a bit involved. For inst ance, in Newt on v Chat er, t here was “ no disput e in t he medical evidence” t hat Newt on suffered from deficiencies of concent rat ion, persist ence, or pace, and t he ALJ even st at ed on a Psychiat ric Review Technique Form t hat Newt on “ oft en” had deficiencies of concent rat ion, persist ence, or pace. See Newt on v. Chat er, 92 F.3d at 695. In a hypot het ical quest ion t o a vocat ional expert , t he ALJ did not include a limit at ion for concent rat ion, persist ence, or pace but inst ead simply limit ed t he hypot het ical individual t o “ simple j obs.” See Id. The Court of Appeals reversed and remanded, finding t hat t he reference t o “ simple j obs” was not enough t o account for t he individual’ s limit at ion in concent rat ion, persist ence, or pace. In Bracht el v. Apfel, 132 F.3d 417 (8t h Cir. 1997), t he ALJ found t hat Bracht el would oft en manifest deficiencies in concent rat ion, persist ence, or pace. In a hypot het ical quest ion t o a vocat ional expert , t he ALJ ident ified an individual who had t he abilit y t o do “ only simple rout ine repet it ive work, which does not require close at t ent ion t o det ail,” and who should not work “ at more t han a regular pace.” See Id. at 421. The Court affirmed, finding t he following: ... While t his is scant ly more t han what was included in t he Newt on hypot het ical, it is enough. In addit ion t o t he abilit y t o do simple work, t he ALJ’ s hypot het ical specifically limit ed concent rat ion (work “ which does not require close at t ent ion t o det ail” ) and pace (“ should not work at more t han a regular pace” ). These specific limit at ions are support ed by t he record, and t heir inclusion in t he hypot het ical is enough t o dist inguish t his case from Newt on. See Id. At st ep t hree, t he ALJ found t hat Berry’ s impairment s did not meet or equal a list ed impairment . As a part of finding t hat Berry’ s ment al impairment did not meet or equal a list ed impairment , t he ALJ found t he following: Concent rat ion, persist ence or pace refers t o t he abilit y t o sust ain focused at t ent ion and concent rat ion sufficient ly long t o permit t he t imely and appropriat e complet ion of t asks commonly found in work set t ings. [Berry] report ed on a funct ion report t hat she did not need special reminders for personal care or grooming but she did for t aking medicine. She alleges t hat she has poor memory and concent rat ion skills. ... Wit h regard t o concent rat ion, persist ence or pace, [she] has moderat e difficult ies. See Transcript at 23. The ALJ not ed t hat t he foregoing finding was not a part of t he assessment of Berry’ s residual funct ional capacit y but was being used t o rat e t he severit y of her ment al impairment at st eps t wo and t hree. A vocat ional expert t est ified during t he administ rat ive hearing. See Transcript at 54-59. The ALJ posed a series of hypot het ical quest ions t o t he vocat ional expert t hat included t he following limit at ion for a ment al impairment : “ And unskilled work defined as able t o perform simple, rout ine, and repet it ive t asks. Make simple, work-relat ed decisions. Int erpersonal cont act is incident al t o t he work performed and supervision is simple, direct , and concret e.” See Transcript at 56. The vocat ional expert t est ified t hat t here is work for an individual wit h such limit at ions. The ALJ relied upon t he vocat ional expert ’ s answer and found t hat t here was ot her work Berry could perform. Berry challenges t he hypot het ical quest ion because it did not include an adequat e limit at ion for concent rat ion, persist ence, or pace as required by Newt on v. Chat er. There is no merit t o her assert ion for at least t wo reasons. 2 First , Newt on v. Chat er is dist inguishable from t he case at bar. In t hat case, t here was no disput e in t he medical evidence about whet her t he claimant suffered from deficiencies of concent rat ion, persist ence, or pace. Here, t he ext ent t o which Berry suffers from such deficiencies is open t o quest ion. The only evidence support ing Berry’ s deficiencies of concent rat ion, persist ence, or pace are Hit t ’ s opinions and Berry’ s selfreport s. The ALJ could and did discount Hit t ’ s opinions, and Berry’ s self-report s are inconsist ent because t here is evidence she is capable of sust aining some measure of concent rat ion, persist ence, or pace. For inst ance, Berry can at t end t o her own personal The Co issio e ai tai s that the ALJ’s fi di gs at steps t o a d th ee a e ot a assess e t of Be ’s esidual fu tio al apa it . The Cou t ag ees. Ea h step of the se ue tial e aluatio p o ess se es a disti t pu pose, the deg ees of p e isio e ui ed at ea h step diffe , a d the defe e tial sta da d of e ie p e ludes the Cou t f o la eli g fi di gs as i o siste t if the a e ha o ized. “ee Chis a i h . Be hill, F. d , th Ci . [ iti g La oi . Ba ha t, F. d , . th Ci . Ea h step i the disa ilit dete i atio e tails a sepa ate a al sis a d legal sta da d. . Diffe e t legal sta da ds a d a al ses a e i ol ed i aki g fi di gs at steps th ee a d fi e, the steps at issue he e. “ee Cheete . Col i , WL E.D.A k. Kea e , M.J. , epo t a d e o e datio adopted, WL E.D.A k. W ight, J. . care, prepare simple meals, perform some household chores but no yardwork, is able t o drive an aut omobile, and can shop in st ores. She helps care for her t wo grandchildren while her daught er works, and Berry spends t ime wit h ot hers. Berry’ s hobbies include reading, sewing, and playing games on her comput er and t he int ernet , act ivit ies t hat require some abilit y t o concent rat e and persist . See Phelps v. Colvin, 2015 WL 5316875 (E.D. Ark. 2015) (Deere, M.J.), report and recommendat ion adopt ed, 2015 WL 5050547 (E.D. Ark. 2015) (Wright J.) (wat ching t elevision and playing video games unt il bedt ime suggest abilit y t o sust ain concent rat ion and persist ence). Moreover, in Newt on v. Chat er, t he ALJ found t hat Newt on “ oft en” had deficiencies of concent rat ion, persist ence, or pace. Here, t he ALJ made no such finding nor any similar finding. The ALJ simply recount ed t he conflict ing evidence, e.g., Berry report ed on a funct ion report t hat she did not need special reminders for personal care or grooming but she did for t aking medicine, and found t hat Berry has moderat e difficult ies in concent rat ion, persist ence, or pace. Second, t o t he ext ent Newt on v. Chat er is not dist inguishable from t he case at bar, t he Court is persuaded t hat t he ALJ’ s hypot het ical quest ion was adequat e. The quest ion ident ified an individual who was limit ed t o, int er alia, simple, rout ine, repet it ive t asks, and subst ant ial evidence on t he record as a whole support s t he ALJ’ s finding t hat Berry has only moderat e limit at ions in concent rat ion, persist ence, or pace. Unit ed St at es Magist rat e Judge Jerome Kearney found a similar quest ion in a similar circumst ance t o be adequat e, see Mabry v. Colvin, 2014 WL 7004503 (E.D.Ark. 2014), aff’ d, 815 F.3d 386 (8t h Cir. 2016), and t he ALJ’ s quest ion in t his inst ance capt ured t he concret e consequences of Berry’ s deficiencies of concent rat ion, persist ence, or pace. On t he basis of t he foregoing, t he Court finds t hat t here is subst ant ial evidence on t he record as a whole t o support t he ALJ’ s findings. Berry’ s complaint is dismissed, all request ed relief is denied, and j udgment will be ent ered for t he Commissioner. IT IS SO ORDERED t his 11t h day of July, 2018. ________________________________________ UNITED STATES MAGISTRATE JUDGE
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