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Tedford v. Colvin

United States District Court, Eighth Circuit

July 2, 2013

CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.


LEONARD T. STRAND, Magistrate Judge.


Plaintiff Sharon Tedford seeks judicial review of a final decision of the Commissioner of Social Security (the Commissioner) denying her application for disability insurance benefits (DIB) pursuant to Title II of the Social Security Act, 42 U.S.C. § 405(g). Tedford contends the administrative record (AR) does not contain substantial evidence to support the Commissioner's decision that she is not disabled. For the reasons explained below, the Commissioner's decision is reversed and remanded.


Tedford was born in 1960 and completed high school. AR 30-31. She previously worked as a cashier, sales attendant, maintenance repairer for a building, change person, and assistant manager of a retail store. AR 31-32, 318. Tedford protectively filed for DIB on July 14, 2009, alleging disability beginning on November 26, 2004, [1] due to a stroke and seizures. AR 200-01, 205. Her claims were denied initially and on reconsideration. AR 67-68. She then requested a hearing before an Administrative Law Judge (ALJ). AR 80-81. On November 3, 2010, ALJ Ronald Lahners held a hearing via video conference during which Tedford, Tedford's husband, and a vocational expert (VE) testified. AR 26-66.

On April 26, 2011, the ALJ issued a decision finding Tedford not disabled since November 26, 2004. AR 7-19. Tedford sought review of this decision by the Appeals Council, which denied review on July 17, 2012. AR 1-3. The ALJ's decision thus became the final decision of the Commissioner. 20 C.F.R. § 404.981.

On August 1, 2012, Tedford filed a complaint in this court seeking review of the ALJ's decision. On August 20, 2012, with the parties' consent, the case was transferred to me for final disposition and entry of judgment. The parties have briefed the issues and the matter is now fully submitted.

Summary of Evidence

A. Dr. Luis Pary

On November 25, 2004, Tedford was taken to the emergency room for a sudden onset of unilateral dysarthria, dysphasia and weakness. AR 467. Luis Pary, M.D., recommended aggressive tissue plasminogen activator (t-PA), which is used to treat people who are having a stroke. This resolved her symptoms. Follow-up testing revealed an unclear etiology, or cause, for this episode. AR 467. On December 18, 2004, Tedford was taken to the emergency room because she felt weak on her left side, her face drooped, she was in and out of consciousness and she could not walk. AR 527. A CT scan came back negative and her neurological exam was completely normal. An EEG, MRI, and other tests were also performed that came back normal. AR 530. Dr. Pary, a neurologist, noted that the nature of her symptoms was probably psychogenic and that she might have a somatoform disorder. AR 531. He reviewed the extensive workup that had been done and noted there was no evidence of brain pathology or neurological disorder that could be causing her symptoms. Id.

B. Mayo Clinic

In August and September 2007, Tedford began seeing Jeffrey Krohn, M.D., at Mercy Medical Center for recurrent transient ischemic attacks (TIAs), or mini-strokes. AR 582-87. After performing several tests that revealed normal results and no potential cause for her symptoms, Dr. Krohn referred Tedford to the Mayo Clinic for a neurology consultation with Jimmy Fulgham, M.D., on October 1, 2007. AR 596-98.

Tedford reported to Dr. Fulgham that she was having episodes three to four times per week where the left side of her face would become numb and droopy and her fingers would flex. AR 596. The episodes would last from a few minutes up to an hour. Tedford's husband noted that sometimes during these episodes her mouth would open, her tongue would extend out and her eyes would roll up. Id. She was unresponsive during these episodes and afterward she would feel very tired. Dr. Fulgham noted there had been no incontinence or tongue biting. Id. He also considered her history of migraines. Id.

Dr. Fulgham ordered tests, which all came back negative. AR 594. He told her it was possible for someone to have a seizure disorder and a normal EEG. Id. He did not believe her spells were due to a blood clot. Nor was he able to entirely exclude a migrainous event as the cause of her symptoms because of Tedford's history with migraines. He recommended she take Topamax. Id.

C. Siouxland Community Health Center

Tedford's current primary care doctor is Jonathan Taylor, D.O., at Siouxland Community Health Center. In September 2009, she told Dr. Taylor that she had been stopped at a stoplight and someone approached the window of her car because she had been sitting at the light through multiple cycles of the light changing. AR 752. She said she was a little foggy after the incident, but drove fine. Dr. Taylor thought sleep deprivation was most likely, followed by possible seizure, followed by TIA. Id. He recommended someone drive her for the next few months while her stress level was high. Dr. Taylor also noted that she had not been using her CPAP machine due to financial reasons and recommended she sleep on her side in the meantime. Id.

On November 3, 2009, Tedford reported she had had four seizures that day and had fallen during one earlier in the week. AR 787. She felt like the Topamax was not working, but Dr. Taylor recommended she continue it because it was likely helping with her headaches too. Id. He indicated that he was not sure if her episodes were actually seizures. Id.

In December 2009, her EEG results were normal. AR 785. She had recently experienced shaking during her episodes, which would last about two minutes. She said she had been lying down when it happened and there never seemed to be any specific pattern to her episodes. Id.

In March 2010, Tedford was able to use a CPAP machine again. AR 783. In August, she reported she had been using it intermittently and "a little bit better than before." AR 775. Dr. Taylor wrote that she had been doing housework and a little bit of yardwork, but she had difficulty lifting her grandchildren of two months and two years old. Id.

In September 2010, she was regularly using her CPAP machine again, but would only sleep four to five hours before taking it off. AR 773. Tedford reported a high stress level and said she was experiencing seizures about twice per week. Id.

D. State Agency Consultants

Rene Staudacher, D.O., performed a physical residual functional capacity (RFC) assessment on September 14, 2009. AR 739-46. Based on her review of the record, she found that Tedford could occasionally lift and/or carry 20 pounds, frequently lift and/or carry 10 pounds, could stand and/or walk and sit about six hours in an eight-hour workday, and had unlimited pushing and/or pulling capabilities other than her lifting/carrying limitations. AR 740. She could occasionally climb, balance, stoop, kneel, crouch and crawl. AR 741. She was limited in her ability to reach overhead on the left side, but unlimited in handling, fingering and feeling. AR 741-42. She did not suffer any seizures from December 2008 to April 2009. Id. Dr. Staudacher also noted that Tedford's "spells" were not confirmed as seizures by the objective medical evidence. Even if they were, she did not think they would be of listing level equivalency in frequency or severity. Id. She thought that certain hazards should be avoided even though the "spells" had not been clearly defined, and that Tedford would be capable of working within the RFC provided. Id. On reconsideration, Laura Griffith, D.O., affirmed this RFC as written. AR 769.

Herbert Notch, Ph.D., performed a psychiatric review technique on August 7, 2008. AR 699-712. He noted that there were no medically determinable mental impairments based on his review of the medical evidence. AR 711. Tedford was currently working at Kum-N-Go and her supervisor noted that in the areas of adapting to changes in the workplace and managing workplace stress she was "poor" but in all other areas she was rated "adequate" or better. Id.

E. Consultative Examinations

Blanca Marky, M.D., performed a consultative physical examination on December 21, 2010. AR 794-99. Dr. Marky reported the following impression:

Pseudoseizures. The story that she and her husband relate around the seizure is of a partial seizure on the left side. The patient herself has stated that the day she had a stroke she had a nodule in her left neck that disappeared the day that they gave her the t-PA. I confronted her telling her that if she had a stroke on the left side of her body the affected side would be her right side and not her left side and she said that she knew that but still she maintains that she had a stroke even though she has been told by Dr. Luis Pary and another neurologist that she did not have any strokes or any scar of strokes or any structural cause for having epilepsy in the past.
The typical history of seizures is a convulsion that lasts for 90 seconds at most and has a recovery or postictal period of 20-30 minutes typically and of course it is not possible to have several a day, only if the patient has status epilepticus and she does not have any medication. So the history that she is giving is not very good on one side. On the other side I am not able to find any sign of weakness on the left side that she stated that is affected by the seizure. She keeps her left hand in a fist. But I saw her extend her hand completely during the exam when she was distracted.
I do not think that this patient needs any kind of disability. She does not have a real history of stroke even though she was given alteplase but sometimes one of the problem[s] that we neurologists had with tPA administration or alteplase, is the time constraint of three hours after the symptom onset and so most likely this patient was reaching these three hours so Dr. Pary most likely could not wait to have the MRI that is not always available to make his full diagnosis so that is why she was given alteplase and most likely she was going to improve anyway. There is no sign of stroke in the distribution of her right MCA to prove that this patient had stroke. In regards to the seizure, if she had a stroke then partial motor seizures can be explained but in motor partial seizures there is no loss of consciousness because they are only partial motor and they are very easy to control and of course they do not last for 30-45 minutes and they are not followed by any sleepiness. Sometimes they are but not for one hour. I think that this patient has pseudoseizures, migraines, that is her diagnosis and I really do not think she needs to be on disability.

AR 798-99.

Michael Baker, Ph.D., performed a consultative mental examination on December 7, 2010. AR 804-11. He found she only had mild limitations in work-related mental activities and diagnosed her with somatization disorder. AR 804-05, 811. He reported the following impression:

In regards to mental limitations related to work activities, this client would have the ability to remember and understand instructions, procedures and locations for non-complex type employment. She would also have the ability to maintain adequate attention, concentration and pace for carrying out instructions in similar work. Past history of employments indicate varying degree of ability to interact appropriately with supervisors, coworkers and the public. She reports being let go from a couple of jobs, but she reports that was due to reported mistakes having to do with counting money and mathematics. At the same time, she maintained other employments that indicated ability to interact appropriately overtime. In regards to normal changes necessary in the workplace, if not too stressful, she should be able to respond with adequate judgment.

AR 811.

Hearing Testimony

Tedford testified that she felt she could not work because her left hand curled, she had seizures, poor concentration, and was "slow at things." AR 31. In the past 15 years, she had worked as a cashier, sales attendant, maintenance repairer for a ...

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