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Covey v. Berryhill

United States District Court, W.D. Wisconsin

March 18, 2019

NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff Jeffrey Covey filed this action seeking reversal of the final decision of the Commissioner of Social Security denying his applications for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) under Titles II and XVI of the Social Security Act, respectively. 42 U.S.C. §§ 405(g), 423 et seq. The parties have consented to the jurisdiction of the United States Magistrate Judge, pursuant to 28 U.S.C. § 636(c). Covey raises two challenges on appeal: (1) the administrative law judge (ALJ) who denied his claim at the administrative level failed to properly account in his residual functional capacity assessment and corresponding hypothetical for Covey's moderate limitations in the area of concentration, persistence or pace; and (2) the ALJ failed to give proper weight to the opinion of Dr. Todd Rave, one of Covey's treating physicians. For the reasons stated below, I am affirming the commissioner's decision.

         I. BACKGROUND

         Covey applied for DIB and SSI benefits on January 4, 2013, alleging that he had been disabled since January 1, 2010 from epilepsy, depression, asthma, allergies and back problems. Covey was 38 years old on his alleged disability onset date, had a high school education and had worked in the past as a grinder at a foundry. After the agency denied Covey's claim initially and on reconsideration, he requested a hearing before an administrative law judge, which was held on September 7, 2016. Covey was represented by counsel at the hearing. Covey testified, as did a neutral vocational expert. On September 16, 2016, the ALJ issued a decision finding Covey not disabled. The Appeals Council denied Covey's request for review, making the hearing decision the final decision of the commissioner.


         A. Seizures

         1. Medical Records

         On April 22, 2012, Covey sought emergency medical treatment after experiencing an event that might have been a seizure. Covey reported that he was with some friends drinking beer while sitting on the back of a truck and next thing he knew, he woke up on the ground. Covey said that he passed out for three to five minutes and bit his tongue. Covey said he had experienced similar episodes of passing out for the past five to six years. At the time of the exam, however, Covey said he was a little tired but mostly felt like his normal self. The ER staff opined that Covey might have passed out from coughing-he had bronchitis at the time and smoked up to two packs of cigarettes a day-and then had a seizure. AR 477-85.

         Dr. Paul Atkinson, an epilepsy specialist with the Ministry Medical Group, saw plaintiff on April 25, 2012. Covey indicated that before passing out on April 22, he had experienced a “coughing fit.” According to Covey, he had similar incidents of passing out in the past and each time it was associated with a strong attack of coughing. Covey reported that he had never had an episode where he simply lost awareness, or where people could not get his attention. Covey's wife, likewise, indicated that she had never observed Covey experience any such spell.

         On mental status exam, Dr. Atkinson noted that plaintiff was awake, alert and oriented, with good attention span and concentration. His recent and remote memories were intact. Dr. Atkinson questioned whether Covey's April 22 spell was a seizure versus a fainting episode, but suspected seizure because Covey bit his tongue and was confused afterward. He ordered an EEG and encouraged Covey to stop smoking to address his chronic cough and shortness of breath. Covey asked Dr. Atkinson whether he should seek disability. Dr. Atkinson replied that it would not be appropriate to do so based on a single episode, but he advised him not to drive, bathe alone or work at heights. AR 608-10.

         Covey saw Dr. Atkinson in follow up on June 8, 2012, after having cancelled a couple of appointments. He said he had not had any seizures since the April 22 incident. However, Covey's EEG was abnormal, showing left temporal slowing and left temporal epileptiform discharges. Based on the abnormal EEG, Dr. Atkinson diagnosed suspected complex partial seizures and started Covey on anti-seizure medication. AR 605-06.

         Covey next saw Dr. Atkinson six months later, on December 7, 2012. He reported doing well since his last visit with no overt seizure activity. He was taking his medication regularly without side effects and overall did not have any new concerns. Dr. Atkinson noted that Covey was pleasant, well groomed and in no apparent distress. Covey's concentration, attention, and memories all were intact and his fund of knowledge was appropriate. AR 602-03. Atkinson noted that Covey would be legal to drive if he had no episodes of lost awareness for 90 days and had a therapeutic medication level.

         Plaintiff saw Dr. Dotti, a neurologist, on April 24, 2013, approximately a year after the first seizure incident. (Dr. Dotti took over Covey's case after Dr. Atkinson left the medical practice.) Dotti noted that Covey had asked him to fill out forms for disability. Dotti wrote:

I am not so sure that this patient has epilepsy . . . I told him that I am not an epilepsy specialist, so I would like to transfer him to Marshfield. Some of the spells (especially the first one) were associated with cough and to me those are more similar to syncope . . . The diagnosis of seizure was based only on one abnormal EEG, so it is possible that he may have also seizures but also cough induced syncope. Only at the end of the visit he told me that he had a seizure 1 month ago. He really wanted a lot of restrictions regarding his work but we discussed that I do not feel comfortable. He says that he feels fatigued and with headaches. He had complaints of headaches even years ago.

AR 600.

         Dr. Dotti opined that Covey had “an ulterior motivation, ” but regardless, the only restrictions he would have if he actually had seizures were no driving, no climbing ladders and no operating heavy machinery. AR 601. Dr. Dotti referred Covey to an epilepsy specialist at the Marshfield Clinic, but Covey did not keep that appointment.

         About six months later, on November 3, 2014, plaintiff saw neurologist Dr. Todd Rave at the Ministry Medical Group. Covey told Dr. Rave that he typically had 1 to 2 seizures a month and that it had been about four months since his last seizure. AR 1307. Covey said that when he has a seizure, he passes out and “shakes bad.” However, Covey did not give a clear answer when Dr. Rave asked if he remembered the shaking or not. Covey denied having any episodes of “missed time or missed conversation.” AR 1307. He had been working part-time on a potato inspection line, but he was let go after his son told the employer about his seizures. AR 1307.

         Covey also reported excessive fatigue, noting that he slept most of the day. Dr. Rave thought Covey “probably” had epilepsy based on the abnormal EEG, but said he was concerned about “nonepileptic events, ” noting that Covey had provided some “inconsistencies” that did not fit well with an epilepsy diagnosis. AR 1308. Dr. Rave decided to continue to prescribe anti-seizure medication, referred Covey to a specialist for evaluation of sleep apnea and said Covey probably should continue to avoid driving. AR 1309. He told Covey to call his office right away if he had a seizure. AR 1309.

         Dr. Rave saw Covey again on February 23, 2015. Covey said he had had a “short” seizure maybe a week or two ago where he passed out for a few seconds and was shaking, according to people he was with. Rave increased the dosage of Covey's medication. AR 1304. Rave noted that if Covey continued to have seizures, he might consider an Epilepsy Clinic referral where Covey could be monitored as an inpatient. Rave noted, however, that he still questioned whether Covey might be having “pseudo seizures”[1] and he wanted to talk to someone who had witnessed one. AR 1305.

         On May 15, 2015, Covey saw physician assistant Steven Meyer for treatment of his breathing issues. Meyer noted that Covey's seizure disorder was stable on medication. AR 1298 However, on May 28, 2015, Covey told Dr. Rave he had had another seizure about 2-3 days ago. It was his “typical” seizure where he was coughing and he just “went out.” AR 1294. There were no witnesses. Dr. Rave diagnosed intractable complex partial epilepsy and increased Covey's anti-seizure medication. AR 1295. He noted that he still had “some concerns about non-epileptic events, ” but noted that as the medication had increased, those had been less frequent. Id.

         On April 19, 2016, Covey told a nurse practitioner that his epilepsy was better controlled and that his last seizure was about 2 months ago. AR 1288.

         2. Statements to the Agency

         Covey and his wife provided statements to the local disability agency in support of his applications. In July 2013, Covey's wife said that Covey was having three seizures a month. When asked the dates of the last three most recent attacks, if known, she wrote: June 14, 2010, April 22, 2012, and July 12, 2013. AR 356. On another undated Seizure Questionnaire, Covey's wife stated that Covey's seizures were from 5 to 20 minutes in length and he had about four per year. She denied that Covey had more than one type of seizure. AR 370.

         3. Medical Source Statements

         a. Pat Chan, M.D.

         On December 5, 2013, Dr. Pat Chan, a consulting physician for the local disability agency, reviewed Covey's medical records and determined that Covey did not have any exertional limitations. Dr. Chan noted that Covey had seizures “occasionally, ” and therefore he should avoid climbing ladders, ropes or scaffolding or working around dangerous machinery, but otherwise did not have any physical work restrictions. AR 513-520.

         b. Mina Khorshidi, M.D.

         On August 4, 2014, Dr. Khorshidi, a state agency physician, reviewed Covey's file in connection with his request for reconsideration. Dr. Khorshidi concluded that Covey did not have a severe physical impairment. She found that his epilepsy diagnosis was not well-established, insofar as he did not report any seizures from April to December 2012 and ...

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